Federal Court of Australia

Farcas v Minister for Immigration and Citizenship [2026] FCA 1228

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time for the applicant to file an originating application for review of the decision of the second respondent (Tribunal) dated 25 June 2025 be extended to 25 September 2025.

2.    A writ of certiorari issue quashing the decision of the Tribunal in Farcas v Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 825 (2024/5724) dated 25 June 2025.

3.    A writ of mandamus be directed to the Tribunal requiring the Tribunal, differently constituted, to determine the applicant’s application to the Tribunal according to law.

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

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

REASONS FOR JUDGMENT

STELLIOS J:

1    This is an application by Daniel Victor Farcas for an extension of time under s 477A of the Migration Act 1958 (Cth) to seek judicial review of a decision of the second respondent, the Administrative Review Tribunal, made on 25 June 2025. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to revoke the mandatory cancellation of the applicant’s visa.

2    The proceeding was listed before me on 19 May 2026 for the determination of the extension of time application. However, the parties agreed that, on the basis of the written submissions and the oral submissions presented at that interlocutory hearing, the Court should proceed to determine the substantive review application if satisfied that leave should be granted.

3    For the following reasons, I accept that the Tribunal erred in the way alleged by Mr Farcas. I also accept that the error was material in the relevant sense. Accordingly, I grant Mr Farcas an extension of time to seek judicial review, and make the orders that he seeks to quash the decision and for the Tribunal, differently constituted, to determine Mr Farcas’ application according to law.

background

4    Mr Farcas is a citizen of Romania who arrived in Australia in November 2002, aged 11, on a Class TK Subclass 455 Dependent Child visa. On 16 January 2003, he was granted a Class AS Subclass 801 Spouse visa as a secondary applicant on his mother’s spousal visa application.

5    In November 2019, he was convicted of “trafficking in dangerous drugs” and sentenced to imprisonment for four years. This offence is what led Mr Farcas to fail the character test under s 501(6)(a) of the Migration Act. His visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act (mandatory cancellation).

6    Mr Farcas unsuccessfully sought revocation of the mandatory cancellation pursuant to s 501CA(4) of the Migration Act. He then applied to the Tribunal for a review of the delegate’s refusal to revoke the cancellation. On 25 June 2025, the Tribunal affirmed the delegate’s decision.

7    The Court has jurisdiction under s 476A(1)(b) of the Migration Act to hear an application to review the decision of the Tribunal: see s 500(1)(ba). Such an application must be made to the Court within 35 days of the date of the decision: Migration Act s 477A(1). In the applicant’s case, the final day for lodging the application within time was 30 July 2025. The applicant lodged the application for an extension of time and supporting affidavit pursuant to s 477A(2) of the Migration Act and r 31.23 of the Federal Court Rules 2011 (Cth) on 24 September 2025, 56 days out of time.

The review application

8    The applicant’s proposed review application filed with the application for an extension of time seeks to quash the Tribunal’s decision and a writ of mandamus directing the Tribunal to determine the applicant’s application according to law. It advances the following ground of review:

1. The Second Respondent's (the Tribunal) decision was affected by illogicality and/or irrationality in its consideration of the extent of impediments if the Applicant were to be removed to Romania.

Particulars

a. Paragraph 9.2 of Ministerial Direction No.110 required the Tribunal to consider, among other things, the extent of any impediments to the Applicant if removed to Romania, in establishing themselves and maintaining basic living standards.

b. At [54c] of the Applicant's statement of facts, issues and contentions, it was submitted on behalf of the Applicant that “the standard of mental health care and accessibility to treatment in Romania is not comparable to that available in Australia. Given the Applicant's complex mental health needs, his vulnerability to further deterioration would be significantly heightened if he were removed to Romania”.

c. At [131] and [134] of the Tribunal's decision, the Tribunal referred to the “relative differences” in the healthcare systems in Australia and Romania and found that they constituted a “genuine but not insurmountable impediment”.

d. The finding referred to above at (c) was affected by illogicality and/or irrationality for the following reasons:

i. the Tribunal made no clear finding at [131] as to what the actual differences in the Australian and Romanian healthcare systems were. The Tribunal's assertion that the differences represented a “genuine but not insurmountable impediment” was not a finding that was open on the evidence before it;

ii. there was no consideration by the Tribunal of the particular mental health conditions or treatment needs of the Applicant in finding that the differences in the healthcare systems represented a “genuine but not insurmountable impediment”. There was evidence of the nature of the applicant’s mental health conditions and needs in the psychological report prepared by Cassandra Tuckey dated 10 November 2023; and

iii. there was no evidence or reasoning to suggest that the Tribunal had drawn upon any accumulated specialist knowledge of the Romanian healthcare system vis-á-vis the Australian healthcare system such that it could safely make the finding that the differences in healthcare systems represented a “genuine but not insurmountable impediment”

Application for an extension of time

9    An order extending the time for lodging an application may be made if the Court is satisfied that it is necessary in the interests of the administration of justice to do so: s 477A(2)(b) of the Migration Act. As Kiefel CJ, Gageler, Keane and Gleeson JJ said in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12]:

Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

(Citations omitted)

See also Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16] (Thawley J).

10    The reasons for Mr Farcas’ delay of 56 days were explained in two affidavits of his solicitor, Marta Mamarot, dated 24 September 2025 and 13 May 2026 respectively. Counsel for Mr Farcas read those affidavits, save for the second sentence of paragraph [8] of the affidavit dated 24 September 2025.

11    The submitted reasons for the delay can be summarised as follows:

(1)    On 8 July 2025, Mr Farcas was granted limited funding from Legal Aid New South Wales to engage counsel for advice on prospects of success of a Federal Court application, and Mr Farcas’ solicitor proceeded to brief counsel in this regard on or around 9 July 2025;

(2)    Repeated follow-up communications between 9 July 2015 and 11 August 2025 to counsel seeking progress updates received either no response or no meaningful response;

(3)    Mr Farcas’ solicitor was impacted by a personal bereavement between 20 July 2025 and 11 August 2025, which included travel overseas from 29 July 2025 to 11 August 2025. During this time, the solicitor’s capacity to attend to her practice in a normal and consistent manner was diminished;

(4)    Mr Farcas’ solicitor formally terminated counsel’s services for failure to meet deadlines and engaged new counsel on 21 August 2025 to advise on the prospects of success in this proceeding;

(5)    Counsel provided advice on 22 August 2025 and an application for a full aid of funding was lodged with Legal Aid New South Wales on the same day; and

(6)    A grant of funding by Legal Aid New South Wales was approved on 18 September 2025, which enabled counsel to be secured to assist with preparing the originating application for the purpose of commencing this proceeding.

12    Counsel for the Minister accepted that no specific prejudice to the Minister would be suffered if an extension of time were granted, although noted that the absence of prejudice is not, in itself, a reason to grant an extension of time (citing SZTRY v Minister for Immigration and Citizenship [2015] FCAFC 86 at [6]). Further, it was accepted that, while the delay of 56 days was not insubstantial, it was not such a lengthy delay that would justify the extension being refused on that account alone. Given the circumstances outlined by Mr Farcas’ solicitor, counsel for the Minister properly accepted that the main point of contention for the extension application was the merits of the ground of review.

Merits of the review application

13    As set out above at [8], the proposed originating application challenges the Tribunal’s decision on the bases of illogicality and/or irrationality insofar as the Tribunal found the difference in publicly available mental healthcare between Australia and Romania to constitute a “genuine but not insurmountable impediment” to Mr Farcas’ removal to Romania.

14    I will now set out the pertinent parts of the Tribunal’s reasons by reference to the contentions and evidence before the Tribunal.

The Tribunal’s decision

15    The Tribunal’s task was to consider and apply s 501CA(4) of the Migration Act. That section relevantly provides:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

16    Mr Farcas accepted before the Tribunal that he did not pass the character test. His sentence to a term of imprisonment of 12 months or more resulted in the inevitable conclusion that he had a substantial criminal record and, thereby, failed the character test: s 501(6)(a) and (7)(c).

17    The issue for the Tribunal was, therefore, whether there was “another reason” why the decision to cancel Mr Farcas’ visa should be revoked.

18    The Tribunal recognised that it was required by s 499(2A) of the Migration Act to comply with written directions made pursuant to s 499(1). Relevantly, Direction No 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA required the Tribunal to take into account five “Primary Considerations” and three “Other Considerations”. Relevantly to the present proceeding, one of the Other Considerations taken into account by the Tribunal was set out in paragraph 9.2 of Direction 110 as follows:

9.2. Extent of impediments if removed

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country.

19    Under the heading of “Extent of Impediments if Removed to Romania”, Mr Farcas’ Statement of Facts, Issues and Contentions (SFIC) before the Tribunal relevantly contended that (underlining added):

b) The Applicant suffers from complex mental health issues, and it is the professional opinion of his assessing psychologist, Ms. Cassandra Tuckey, that he should continue receiving regular psychological treatment. Furthermore, the Applicant has expressed suicidal thoughts in the event of his removal to Romania, which highlights the severity of his emotional distress [GDOCS 104]. Ms. Tuckey has further emphasized that the Applicant’s mental health would be severely impacted by the physical separation from his partner, children, stepchildren, and established social network. The support he currently receives in Australia is critical to his well-being.

c) We submit that the standard of mental health care and accessibility to treatment in Romania is not comparable to that available in Australia. Given the Applicant's complex mental health needs, his vulnerability to further deterioration would be significantly heightened if he were removed to Romania [GDOCS 104]

20    “GDOCS 104” was a reference to a page in the psychological report of Cassandra Tuckey dated 10 November 2023 that referred to statements made by Mr Farcas to Ms Tuckey. Before the Court, the Minister queried the information that could be relevantly discerned from that specified page, particularly in relation to the nature of treatments, Mr Farcas’ needs, what treatment is available in Romania, and the like. However, as Mr Farcas submitted, Ms Tuckey elsewhere in the report identified the psychological testing undertaken, a diagnosis and a rehabilitation plan.

21    The diagnosis was stated in the following terms:

… suffering from PTSD, grief, moderate-severe depression, moderate-severe anxiety in the form of a Chronic Anxiety Disorder, moderate-severe stress & sensory deprivation from being detained in immigration detention.

(Emphasis in original)

22    The psychological report then set out the following “Rehabilitation Plan”:

It is recommended that Daniel continue to have regular Psychological treatment, to treat his grief, PTSD, sensory deprivation, moderate-severe depression, moderate-severe anxiety and moderate-severe stress. Regular Psychological treatment will enable Daniel FARCAS to lead a normal life; to make better decisions; it will enable him to have better judgement; it will increase his self esteem and self confidence, and it will also increase his insight into his own behaviour and the effect of his behaviour on others. It is also recommended that he continue to live with his mother, so he can continue to care for her & support her financially, & to care for & to financially support his son. If Daniel continues with his treatment plan, & he has pledged to continue, then prognosis for rehabilitation will be good. He is currently prescribed anti-depressant medication to treat his moderate-severe depression & PTSD which he takes daily. He has also been prescribed anti-anxiety medication to treat his moderate-severe anxiety.

23    Ms Tuckey then stated:

It is my professional opinion that if Daniel FARCAS continues with his current treatment plan, then prognosis for future rehabilitation will be good. I am aware that he has been incarcerated before, however, I do not believe in this instance keeping him in immigration detention & possibly removing him from Australia & his son & mother & family would prove beneficial in terms of his rehabilitation. Daniel is currently depressed, anxious and stressed, and if he is removed from Australia, then it is more than likely that his symptoms will worsen, and he could possibly identify as a potential self harm or suicide risk. He did state during the assessment that if he is removed to [sic] Australia, he would take his own life. Any statement from a detained person that indicates suicidal thoughts and/or tendencies must be taken seriously, when deciding to possibly remove someone in detention from Australia.

…

He has been compliant with treatment to date, and his treatment has been voluntary. If he continues to have regular treatment, then prognosis for him would be good.

It is my professional opinion that Daniel FARCAS is at minimal risk of re-offending, & he poses no threat to society. It is recommended that he not be removed from Australia, as doing so would have such a detrimental impact on him, his vulnerable young son, his elderly mother, & his siblings, who have all lost so much already with the horrific murder of his sister in such heinous circumstances. It is recommended that he be released from detention, & that he be granted a visa to stay in Australia indefinitely.

24    Having set out Ms Tuckey’s description of the applicant’s “symptomatology” (that is, the diagnosis set out at [21] above), the Tribunal said the following when addressing paragraph 9.2(1)(a) of Direction 110, being “the non-citizen’s age and health” (Tribunal Reasons (TR) [131], emphasis added):

It is, in my respectful view, somewhat trite to suggest that the Applicant will be able to access such publicly available mental health treatments in Romania to the same extent as other citizens of that country. Here, we are looking for “impediments” those symptoms would present to the Applicant in Romania. To my mind, the major impediment is to be found in the relative difference between publicly available mental health support available to him in Australia compared to that in Romania. Such a finding presupposes a perhaps misplaced superiority in Australian public mental health care compared to that of Romania. If that presumption is misplaced, then there few [sic], if any, impediments arising from his mental health symptoms. If it is not, then it reasonable to find the Applicant will be impeded as a result of sourcing the necessary mental health treatments in Romania. The Applicant’s age and state of physical health are not impediments to him returning to Romania. The relative difference between Australia and Romania in terms of publicly available mental health care does constitute a genuine, but not insurmountable impediment.

25    The Tribunal returned to the applicant’s mental health at [134]. In addressing paragraph 9.2(1)(c) of Direction 110, being “any social, medical and/or economic support available to them in that country”, the Tribunal said (underlining added):

With reference to medical support in Romania, I again refer to the state of the Applicant’s physical and mental health. He mentioned physical issues with a hernia and early arthritis but that these issues are currently managed by him taking fish oil tablets and vitamins. There is no impediment issue arising from those physical issues. But there remains the reality of his mental health symptoms. Earlier, I have presumed there to be a difference between Australia and Romania in terms of publicly available mental health care. I will find this difference does constitute a genuine, but not insurmountable, impediment to this Applicant’s return and return [sic] and resettlement in Romania.

26    In its findings about impediments, the Tribunal concluded that (TR [136], emphasis added):

(1)    “[T]he Applicant’s age and state of physical health are not impediments to him returning to Romania. The relative difference between publicly available mental healthcare between Australia and Romania does constitute a genuine, but not insurmountable, impediment to him returning to Romania”; and

(2)    “[A]ny lack of medical support is a genuine, but not insurmountable, impediment to the Applicant’s return and resettlement in Romania”.

27    The Tribunal’s overall conclusion on paragraph 9.2(1) of Direction 110 was that it warranted “a moderately strong level of weight in favour of revocation” (at [137], emphasis in original).

28    Before turning to assess the ground of review, it is necessary to address a challenge by the Minister to Ms Tuckey’s conclusions. The Minister submitted that the Tribunal had cast doubt on the strength of the psychological report in part because Ms Tuckey had not given evidence and, thus, was not exposed to cross-examination. Consequently, the Tribunal expressed the view that both the 10 November 2023 psychological report and an earlier report provided by Ms Tuckey “should be viewed cautiously and weighed sparingly”: TR [62].

29    The analysis below will consider whether the Tribunal erred in hypothesising about the insurmountability of postulated impediments. The Tribunal’s postulation was premised on what Ms Tuckey had said in the report. Consequently, it is not relevant and, thus, unnecessary to consider the weight that the Tribunal placed on Ms Tuckey’s report.

Was there irrationality or illogicality?

Legal principles

30    There was no dispute that irrationality or illogicality in decision-making can give rise to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] (Crennan and Bell JJ).

31    Whether there has been irrationality or illogicality in the relevant sense is not a conclusion that should be lightly reached: SZMDS at [40] (Gummow A‍-‍CJ and Kiefel J), citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at 998 [37]–[38] (Gummow and Hayne JJ); [122] and [130] (Crennan and Bell JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [44]‍–‍[47] (Griffiths, Perry and Bromwich JJ); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(5)] (Kenny, Kerr and Perry JJ).

32    “Not every lapse in logic” will create legal error: SZMDS at [130] (Crennan and Bell JJ); ARG15 at [44]. What might be sufficient to constitute error was considered by Crennan and Bell JJ in SZMDS at [131] and [135]:

... the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

...

[A] decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

Submissions

33    Mr Farcas alleges that the finding made by the Tribunal at TR [131], [134] and [136] that the relative difference between the publicly available mental healthcare between Australia and Romania constitutes a “genuine, but not insurmountable impediment” was illogical or irrational. The submissions advanced in support of that claim were as follows:

(1)    The Tribunal made no clear finding as to what the actual differences in the Australian and Romanian healthcare systems were. Without a clear identification of the differences, the assertion that the differences represented a “genuine but not insurmountable impediment” was not a finding that was open on the evidence before it. Alternatively, there was no logical connection between the evidence or submissions advanced and the inferences and conclusions drawn.

(2)    The Tribunal did not consider Mr Farcas’ particular mental health conditions or treatment needs in finding that the differences represented a “genuine but not insurmountable impediment”. The nature of Mr Farcas’ mental health conditions and needs had been set out in the psychological report prepared by Ms Tuckey, which was before the Tribunal.

(3)    The Tribunal made no finding that properly engaged with Mr Farcas’ particular mental health conditions or treatment needs. Having accepted that Mr Farcas has little or no family support in Romania, there was no evidence to suggest that his mental health symptoms would not be “insurmountable impediments”.

(4)    There was no evidence or reasoning to suggest that the Tribunal had drawn upon any accumulated specialist knowledge of the Romanian healthcare system vis-à-vis the Australian healthcare system such that it could safely make the finding that the differences represented a “genuine but not insurmountable impediment”.

34    The Minister submitted that Mr Farcas’ proposed ground of review lacked merit. The Minister’s submissions can be summarised as follows:

(1)    It was for Mr Farcas, by way of representations and evidence, to satisfy the Tribunal that his mental health symptoms, and the asserted impediments he would face if he returned to Romania, were another reason why the original decision should be revoked. Relying on Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [48]–[50], the Tribunal was not required to ask for further representations or evidence, or inquire into the applicant’s representations or investigate them. The Tribunal was not required to “negate” what the applicant asserted.

(2)    Mr Farcas provided scant contentions, and almost no evidence, as to the nature of what particular treatments he required in Romania, let alone the availability and standard of mental health treatments in Romania, and how they compared to Australia.

(3)    Mr Farcas’ submissions before the Tribunal that (a) treatment in Romania is not comparable to that available in Australia; and (b) his complex health needs and heightened vulnerability to further deterioration if removed, were not further developed, in terms of what treatments Mr Farcas needed, and how (if at all) the “standard” or “accessibility” of those treatments differed between Romania and Australia. Apart from Ms Tuckey’s psychological report, no other evidence was presented in support.

(4)    Ms Tuckey’s psychological report does not explain or give evidence about the specific treatments Mr Farcas would require, nor the standard and accessibility of mental healthcare, in Romania or its difference to that available in Australia. Nor is it apparent how Ms Tuckey, an Australian psychologist, could give evidence about what treatments were available in Romania and at what standard.

(5)    The Minister’s SFIC advanced a contention that there was no evidence before the Tribunal that Mr Farcas would not have access to the physical and mental health treatments available to others in Romania, and nothing further was offered by Mr Farcas in reply as to the particularisation of treatments, and what could or could not be accessed.

(6)    Having observed that (a) Mr Farcas would have available to him the same publicly available mental health treatments as other Romanian citizens; and (b) any “relative difference” would be relevant, the Tribunal dealt with two possibilities:

(a)    If the presumption that there was superior mental healthcare in Australia was misplaced and there was, in fact, no relevant difference, then there would be few if any impediments for Mr Farcas. It was submitted that that would be a rational conclusion that could have been reached by the Tribunal on the material before it, particularly because the applicant had not presented any evidence that mental health services in Romania, in relation to the treatments he might require, were of a lesser standard or less available than in Australia.

(b)    On the alternative possibility that Australian mental healthcare was superior, the Tribunal concluded that those relative differences constituted a “genuine, but not insurmountable impediment”. Again, it was submitted that such a conclusion was (a) rational on the material before the Tribunal; and (b) was simply reflective of Mr Farcas’ failure to satisfy the Tribunal that his mental health symptoms, in light of the treatments he could or could not access in Romania, rose to that very high level. The Tribunal’s conclusion was unsurprising given how little was put before it.

(7)    Mr Farcas’ criticism that the Tribunal made no finding about the relative difference in mental healthcare between Australia and Romania is without substance where Mr Farcas had failed to present specific or detailed evidence on that topic.

(8)    Equally misplaced is Mr Farcas’ criticism that the Tribunal failed to consider his specific mental health treatment needs in Romania. Mr Farcas’ evidence failed to offer that explanation, especially as to what he could or could not access in Romania. The reference in Ms Tuckey’s report to self-harm was put no higher than “could possibly” and the Tribunal stated that Ms Tuckey’s reports were to be treated with real caution.

Consideration

35    In my view, the critical question reduces to whether the Tribunal’s reasoning on its alternative possibility (as characterised by the Minister) fell into error. To get to that point, I must first clear the field.

36    First, as the Minister submitted, it was for Mr Farcas to make his case that there was “another reason” under s 501CA(4) for his visa cancellation to be revoked. It was for Mr Farcas to put to the Minister the representations to be considered. As Kiefel CJ, Keane, Gordon and Steward JJ said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [22]–[24] (footnotes omitted):

… The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

… [T]he decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

37    Further, as Rares and Robertson JJ said in Maioha at [48], “[t]he Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations [they have] made”: see also Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (Davies, Derrington and Colvin JJ).

38    Secondly, I accept the Minister’s submission that it follows from what is said in Plaintiff M1 that it is important to pay close attention to what was put before the Tribunal. Mr Farcas’ claims in his SFIC in relation to the mental health impediments he would face if removed to Romania were confined to:

(1)    The submissions that he suffers from complex mental health issues, that he should continue receiving regular psychological treatment, that Mr Farcas expressed suicidal thoughts in the event of his removal to Romania, that his mental health would be severely impacted by the physical separation from his partner, family and social network, and that the supports he receives in Australia are critical to his well-being; and

(2)    The submission that the standard and accessibility of mental healthcare treatment in Romania is not comparable to that available in Australia.

39    Thirdly, I accept the Minister’s submission that:

(1)    The treatment that Mr Farcas required was not detailed in his SFIC;

(2)    The claim in his SFIC was directed to contending that there were substantial impediments, rather than submitting that they were insurmountable impediments;

(3)    The Minister’s SFIC before the Tribunal put Mr Farcas (and the Tribunal) on notice that “there [was] no evidence to indicate that the applicant will not have access to physical and mental health treatment that is generally available to other citizens of Romania”; and

(4)    There was no probative material to support Mr Farcas’ SFIC submission in [38(2)] above.

40    However, as will become apparent from these reasons, none of these submissions meets the case that Mr Farcas seeks to make before this Court about the irrationality or illogicality of the Tribunal’s finding that the genuine impediments arising from the postulated difference in mental healthcare were not insurmountable.

41    Fourthly, while the psychological report prepared by Ms Tuckey provided support for the claimed complex health conditions and some support for the risks to Mr Farcas’ wellbeing if removed, it lacked detail about the treatment plan (although I note that Ms Tuckey makes reference to ongoing psychological treatment and his then current medical prescriptions when discussing his rehabilitation plan) and expressed an assessment of the future risk to his mental health if removed in qualified terms.

42    Significantly, it provided no support for any finding about the difference in publicly available mental healthcare between Australia and Romania. Importantly, there was no support in the psychological report for Mr Farcas’ SFIC submission about the relative difference in mental healthcare standards and accessibility in each country.

43    Fifthly, there appears to have been no other evidence before the Tribunal about the relative difference in standards and accessibility between the two countries, and the Tribunal did not expressly state that it was relying on any such evidence.

44    Sixthly, in response to the above circumstances, the Tribunal dealt with Mr Farcas’ claim about the inferiority of mental healthcare in Romania by hypothesising two alternative possibilities.

45    The first postulated possibility was premised on a rejection of Mr Farcas’ claim that the standard of, and accessibility to, mental healthcare in Australia are superior to that in Romania. Premised on an equivalence of those standards and accessibility, the Tribunal concluded that there would be few, if any, impediments arising from his mental health symptoms. While there was no evidence of the standard of, and accessibility to, mental healthcare in Romania, I would be prepared to assume that such a conclusion was a rational one based on the premise of equivalence of mental healthcare standards. That is because, on the basis of (a) the postulated equivalence, (b) Ms Tucker’s evidence that Mr Farcas’ prognosis was good if he continued on his treatment plan, and (c) all other things being equal, it was reasonable to conclude that Mr Farcas’ prognosis would also be equivalent in Romania. Of course, all other things might not be equal (eg, access to family support and housing), but for the purposes of the first postulated possibility, it is enough to assume that they are.

46    However, Mr Farcas’ claim was not based on such equivalence; his claim was that the standard of, and accessibility to, mental healthcare in Australia were superior to the position in Romania. Having cleared the field, that claim can now be addressed.

47    On the alternative hypothesis that the standard of mental healthcare and accessibility to treatment in Romania are not comparable to those in Australia, the Tribunal made the statement that is challenged by Mr Farcas that the relative difference between Australia and Romania in terms of publicly available mental healthcare constitutes “a genuine, but not insurmountable impediment”. On the premise of superiority of standards and accessibility in Australia, it is reasonable to find that there would be a genuine impediment.

48    But, what is the basis for the finding that such a genuine impediment would not be “insurmountable”? As indicated, there was no evidence before the Tribunal of the standard of mental healthcare or accessibility to treatment in Romania, or anything otherwise indicating its nature and extent.

49    The Minister submitted that, rather than stating a positive finding that the impediment was not insurmountable, the Tribunal’s words were to be understood as stating a conclusion that Mr Farcas had not satisfied the Tribunal that the genuine impediment was at a level that was insurmountable.

50    In this respect, the Minister placed particular reliance on Maioha. That case requires careful attention. The Minister had decided not to revoke an earlier cancellation made on character grounds. Like the Tribunal in this case, the Minister had to be satisfied that there was another reason why the original decision should be revoked. In her representations to the Minister, Ms Maioha had outlined various hardships that she would suffer if removed, including being separated from her children and immediate family, not having support from family and friends in New Zealand or anywhere to live, and no financial support (at [5]). The Minister’s reasons for refusing to revoke the cancellation indicated that Ms Maioha’s depression and history of drug abuse could be addressed by New Zealand’s “comparable health system” (at [7]). The reasons acknowledged her claims that “she [would] suffer hardship if returned to New Zealand due to leaving her parents, sister and six children behind” and that she “would have nowhere to live and no money”. The reasons then concluded (at [7]):

I find that Ms MAIOHA will experience significant emotional hardship, due to leaving her children behind in Australia. Furthermore, she will undergo a period of adjustment due to her absence from New Zealand of over 28 years, as well as the practical changes to her life, such as accommodation and other familial and social networks.

I find such hardships will not be insurmountable in light of New Zealand’s similar culture, language and health system standards.

51    As summarised by Rares and Robertson JJ (at [26]), Ms Maioha, relevantly, had argued before the Full Court that (1) the Minister’s reasons did not address the question or make findings as to whether Ms Maioha, on return to New Zealand, would find accommodation or money; (2) none of the standards referred to by the Minister (ie, culture, language and health system) concerned the provision of accommodation or money to Ms Maioha, and the Minister made no mention of New Zealand’s social welfare system; (3) the finding that Ms Maioha would “undergo practical changes to her life, such as accommodation” did not address whether or how she would find accommodation and it was unclear from the reasons whether the Minister considered that Ms Maioha would or would not be able to find accommodation; and (4) the submission that Ms Maioha would have nowhere to live and no money was left unstated.

52    The issue for determination was stated by their Honours as “whether the Minister made a jurisdictional error in the manner in which he dealt with [Ms Maioha’s] representations to him that she would have nowhere to live and no money” (at [37]). In response, their Honours stated (at [40]):

[T]he Minister did consider the consequences for the respondent if returned to New Zealand. The Minister considered the impediments the respondent “will face if removed from Australia to her home country of New Zealand in establishing herself and maintaining basic living standards.” The Minister’s conclusion … was that such hardships would not be insurmountable. We construe this to mean that, although at present, because she has not been returned to New Zealand, the respondent has nowhere to live and no money in New Zealand, that hardship on her return would be temporary only in light of New Zealand’s similar culture, language and health system standards. The Minister accepted … that the respondent would endure hardship if returned to New Zealand.

53    Precipitating some of the statements of principle later set out in Plaintiff M1, their Honours then referred (at [41]) to what was said in Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 (at [46]) to the effect “that a decision-maker was not required to make a finding of fact with respect to every claim made or issue raised”, and that “[a] finding of fact may not be required if a claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality”. For example, in Buadromo, the decision-maker had not made an express finding that the respondent in that case would or would not find it impossible to obtain work in Fiji, but had addressed the question of whether he was likely to find employment in Fiji or sufficient employment to provide for his family. The Full Court in Buadromo held that the decision-maker was not required to make a precise finding about his prospects of obtaining employment. The decision-maker had addressed the issue, finding that he had work skills which may help him gain employment in Fiji and expressly found that his children would suffer hardship were Mr Buadromo to be in Fiji: at [41] of Maioha.

54    As to the approach to be applied, in Maioha, Rares and Robertson JJ said that “what is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations”: at [45]. Their Honours’ application of that approach to the facts in Maioha should be extracted at some length (at [46]–[50]):

In our opinion the Minister did have regard to the respondent’s representations in the present case and it could not be said that he had not had regard to the representations that the respondent would have nowhere to live and no money if returned to New Zealand. Indeed, he found that the risk of harm that the respondent posed to the Australian community and the need to protect it from that risk outweighed the factors in favour of restoring the respondent’s visa, including “the hardship Ms MAIOHA … will endure … .” …

…

It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made. In the present case, in our opinion, the Minister was not required to give more extensive consideration to the representations put, such as investigating and making further findings, in particular findings as to how the respondent “would be able to manage those practical changes” as the primary judge appears to have held at [34]. The Minister found that there would be hardship for the respondent but that it would not be insurmountable.

…

It follows, in our opinion, that the Minister did not make a jurisdictional error by failing to make a finding, beyond those he made, that the respondent would suffer hardship that would “not be insurmountable in light of New Zealand’s similar culture, language and health system standards”, which addressed in greater detail the respondent’s representation that she would have nowhere to live and no money if returned to New Zealand. It was for the respondent to satisfy the Minister that her prospective hardship was another reason why the original decision should be revoked. The Minister was not legally required to analyse the representation in order to negate it, the Minister not having been satisfied by what the respondent asserted. It was also not necessary for the Minister’s conclusion that the hardship that the respondent may suffer “will not be insurmountable” to be supported by probative material outside what the respondent had put by way of representation.

55    When viewed against the claims that had been made by Ms Maioha before the Full Court, it can be seen that Rares and Robertson JJ were directing their comments to the question of whether the Minister was required to make further investigations or findings in relation to where Ms Maioha was to live and from where she would obtain financial support if returned to New Zealand. The primary judge had held that the Minister had failed to give “proper, genuine and realistic consideration” or to engage “in an active intellectual way”. In particular, the primary judge considered that the three matters of New Zealand’s similar culture, language and health system standards did not address, respond to or explain why the hardship claimed by Ms Maioha would not be insurmountable: at [12], [35]. In response to the approach of the primary judge, and again precipitating what was to come in Plaintiff M1, their Honours (at [26]) considered that “resort to the language of ‘proper, genuine and realistic consideration’ was to be avoided where possible”: at [42].

56    It was against that background that their Honours said that the Minister’s statement that the hardships would not be insurmountable was construed to mean that the particular hardship in question (Ms Maioha having nowhere to live and no money) would be temporary only in light of New Zealand’s similar culture, language and health system standards. Express findings about that particular hardship were unnecessary given the broader response to the wider hardship claims. The more general finding in response to the wider claims was sufficient to deal with the particular hardship of Ms Maioha having nowhere to live and no money.

57    It was for Ms Maioha to satisfy the Minister that the particular hardship was another reason why the cancellation should be revoked and, contrary to what the primary judge had found, it was not necessary for the Minister to make further or particular findings beyond the general findings that were made. It was in that sense that the Minister was not required to further analyse the particular claim in order to negate it. Nor was it necessary for the Minister’s conclusion that the hardship to be suffered “will not be insurmountable” to be supported by probative material not provided by Ms Maioha by way of representations. In this way, their Honours were responding to the approach of the primary judge in that case and the submissions that had been put by Ms Maioha to the Full Court.

58    In short, in the absence of further particularisation by Ms Maioha of the particular hardship (nowhere to live and no money), the general response that the claimed hardships (including the particular hardship) were not insurmountable in light of New Zealand’s similar culture, language and health system standards, was sufficient to deal with the particular hardship. No further response from the Minister was required where the particular claim of nowhere to live and no money had not been further supported by probative material.

59    That understanding is consistent with the view expressed by Flick J at [70] in Maioha that the statement of reasons was to be understood as the Minister “reaching a state of satisfaction by reference to each of the matters mentioned”. By contrast, “to read [the relevant] paragraphs as a resolution of each of the matters mentioned, but as excluding from consideration the reference … to Ms Maioha having ‘nowhere to live and no money’, would be to interpret those reasons with an eye attuned to the detection of error rather than in a practical and common sense manner”.

60    When the reasons of Rares and Robertson JJ, and the separate reasons of Flick J, are read as a whole, they do not provide support for the Minister’s contentions in this case. They provide no support for reading the Tribunal’s conclusion, that the genuine impediment of a relative difference in mental healthcare is not insurmountable, as intended to convey that the Tribunal was not satisfied on the basis of the evidence that the impediment was insurmountable. That is not how the equivalent statement was understood in Maioha where it was deployed by the Minister to state a positive finding based on New Zealand’s similar culture, language and health system standards. And, as the Minister submitted, Mr Farcas made no submission that the Tribunal find that the impediments were insurmountable. That is not surprising given that it is not a consideration embedded within Direction 110. I accept the submission made by counsel for Mr Farcas at the hearing that the Minister’s suggested reading would require the Court to rewrite the Tribunal’s reasons.

61    Accordingly, Maioha is not analogous to this case. On the second postulated possibility identified by the Tribunal, the finding cannot be read as suggested by the Minister.

Conclusion

62    For these reasons, I accept Mr Farcas’ submission that the Tribunal erred in its reasoning process. Mindful of the high threshold to be satisfied for a finding of irrationality and illogicality, I consider that there was no evidentiary basis for the Tribunal’s conclusion that the impediment produced by the assumed relative difference in mental healthcare between Australia and Romania, which was accepted to be genuine, was not insurmountable.

63    It is important to be clear that the error in the Tribunal’s reasons is not that it failed to make further inquiries or findings about the mental healthcare system in Romania. As Mr Farcas appeared to accept, in my view properly, it would be a different situation if the Tribunal had concluded that Mr Farcas had failed to present probative material on the Romanian mental healthcare system and, accordingly, had not established to the Tribunal’s satisfaction that the standard of, and accessibility to, mental healthcare in Romania was somehow relatively inferior. It was not the role of the Tribunal to make Mr Farcas’ case for him, or to further analyse that submission.

64    The error was in the Tribunal reasoning, on a hypothetical basis, that the impediment, assumed in Mr Farcas’ favour, was not insurmountable. It was not a circumstance where the use of a hypothetical, or the deployment of the formulaic expression of insurmountability of impediments, was necessary or well-founded: see Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628, 638 [3] (Allsop CJ with whom Markovic and Steward JJ agreed).

65    The remaining question is whether the error was material.

Materiality

66    In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said (at [6]–[7], citations omitted):

In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance.

67    Ultimately, the materiality question is whether there was a realistic possibility that the decision that was made could, not would, have been different if the error had not occurred, with the descriptor of realistic “used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable”: LPDT at [14].

68    Mr Farcas submitted that, had the Tribunal not erred by concluding that the genuine impediments he would face if removed were “not insurmountable”, it is likely that it would have come to a different conclusion as to the severity of the impediments and whether they could be ameliorated in Romania.

69    The Minister submitted that the error would not be material because the Tribunal approached the matter in a way that was most favourable to Mr Farcas. In hypothesising the way it did, the outcome on the second postulated possibility was that, even if the impediment was assumed to exist in Mr Farcas’ favour, it would still not result in an outcome favourable to Mr Farcas.

70    Not without some hesitation, I have concluded that the error was material. The Tribunal’s findings about “impediments” were set out at [136]. In addition to the challenged finding, the Tribunal concluded that:

(1)    Mr Farcas’ age and state of physical health are not impediments;

(2)    There are no substantial language or cultural barriers impeding Mr Farcas’ return and resettlement to Romania;

(3)    Any lack of economic support will, in the short to medium term, impede his return and resettlement in Romania but not to any insurmountable extent;

(4)    Any lack of medical support is a genuine, but not insurmountable, impediment; and

(5)    The relative lack of social support, at least in the short to medium term, will be an impediment, but not to an insurmountable extent.

71    Despite there being little in these findings that went in Mr Farcas’ favour, the Tribunal concluded at [137] that Other Consideration (b) of Direction 110 (that is, the extent of impediments if removed) warranted a “moderately strong level of weight in favour of revocation” (emphasis in original).

72    If the Tribunal had not erroneously hypothesised about the superiority of mental healthcare in Australia, it would have been required to make a finding based on the evidence. What finding should have been made was a matter for the Tribunal (LPDT at [15]), but that finding would most likely have affected the evaluation of the overall weight to apply to the impediments. While the Tribunal had assumed, under the second possibility, a difference in mental healthcare systems in Mr Farcas’ favour, and thereby assumed a genuine impediment, the erroneous conclusion that the impediment was not insurmountable was ultimately not favourable to him. If that conclusion had not been reached, there is a realistic possibility that the weight given to that factor would have been more favourable to Mr Farcas. Even if a positive finding would not have been possible on the evidence, that neutral finding would have been more favourable than the conclusion actually reached.

73    Given that (a) two of the Primary Considerations of Direction 110 were weighed in Mr Farcas’ favour, with Primary Consideration 3 (strength, nature and duration of ties) weighed heavily in Mr Farcas’ favour, and (b) the Other Consideration of “legal consequences of the decision” was also given moderate weight in favour of revocation (with the third Other Consideration of “impact on Australian business interests” being given neutral weight), there exists a realistic possibility that the outcome of the decision could have been different if the error had not been made. A different conclusion might not have been likely, but that is not the test to be applied. As the joint judgment said in LPDT, the “threshold is not demanding or onerous” (at [14]).

74    It is not necessary in this case to reconcile the requirement of materiality with the framework of analysis for irrationality and illogicality: see Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; 315 FCR 435 at [50] (Perry, Kennett and Shariff JJ); cf EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; 311 FCR 155 at [34]–[36] (Hill J). The Minister did not contend that the error in this case, if established, was not capable of constituting jurisdictional error. Instead, the Minister submitted that Mr Farcas could not establish materiality. It is enough to say that the impugned finding was “sufficiently central” (SSVJ at [50]) to the formation of the Tribunal’s state of satisfaction that there was not “another reason” to revoke the cancellation of Mr Farcas’ visa.

disposition

75    For the foregoing reasons, I grant the extension of time, the review application succeeds and a writ of certiorari will be issued to quash the decision of the Tribunal. A writ of mandamus is directed to the Tribunal, requiring the Tribunal (differently constituted), to determine the applicant’s application according to law.

76    The parties were in agreement that costs should follow the event. Accordingly, the Minister should pay Mr Farcas’ costs as agreed or assessed.

Associate:

Dated:    28 August 2026