Federal Court of Australia

NKHH v Minister for Immigration and Citizenship [2026] FCA 1422

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file his originating application for review of a migration decision be granted.

2.    A writ of certiorari be issued quashing the decision of the second respondent made on 23 September 2025.

3.    A writ of mandamus be issued remitting the applicant’s application for review to the second respondent for determination 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

SHARIFF J:

1.    INTRODUCTION

1    The applicant is a citizen of South Sudan who arrived in Australia in June 2008. The applicant was granted a Class XB Subclass 202 Global Special Humanitarian visa after his mother was granted refugee status following her earlier arrival in Australia in 2005.

2    The applicant has an extensive criminal history spanning from February 2011 to May 2024. After an earlier cancellation of his visa which was subsequently revoked, on 22 February 2024, a delegate of the respondent (Minister) again cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) having regard to s 501(7)(c) (Cancellation Decision).

3    On 10 March 2024, the applicant requested that the Minister revoke the Cancellation Decision but on 1 July 2025 a delegate of the Minister decided not to revoke that Decision. On 9 July 2025, the applicant sought review of the delegate’s decision before the Administrative Review Tribunal (Tribunal). On 23 September 2025, the Tribunal affirmed the delegate’s decision: see NKHH v Minister for Immigration and Citizenship, 23 September 2025 (Tribunal’s Decision or TD).

4    By his application to this Court, the applicant seeks an extension of time pursuant to s 477A(2) of the Act in which to seek judicial review of the Tribunal’s Decision and, if such an extension is granted, to have that Decision set aside. The proposed application for judicial review advances a single ground comprised of five sub-grounds. The five sub-grounds concern the Tribunal’s reasoning at TD [122]-[123] in relation to its consideration of the legal consequences of a decision made under s 501CA as required by paragraph 9.1 of Direction No 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110). The applicant contends that the Tribunal:

(a)    committed the same error identified in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [30]-[34] (Rangiah J), in finding at TD [123] that the “applicant’s removal and exclusion from Australia are intended purposes of the statutory scheme” and “underlie the considerations in Direction 110”: Grounds 1(a) and (b);

(b)    engaged in jurisdictional error by failing to consider the legal consequences of indefinite exclusion and immigration detention in the applicant’s particular circumstances, relying upon similar reasoning in Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411 at [32] (Banks-Smith J) and Singh at [42]: Grounds 1(c) and (d); and

(c)    arrived at a conclusion that was legally unreasonable and/or illogical and irrational by affording “no weight” to the consideration as to the legal consequences of the decision including based solely on the fact those consequences were statutory in a way that was found to have been unreasonable in Le v Minister for Immigration and Citizenship [2026] FCA 774 at [45]-[57] (Lee J): Ground 1(e).

5    For the reasons that follow, I have determined that: (a) the applicant should be granted an extension of time; (b) Ground 1(e) has been established; (c) the Minister should pay the applicant’s costs as agreed or assessed; and (d) the application should otherwise be dismissed.

2.    THE TRIBUNAL’S DECISION

6    In its reasons, the Tribunal set out the procedural background and the applicable law at TD [1]-[22]. It summarised the applicant’s criminal history at TD [24]-[35].

7    The Tribunal was satisfied that the applicant failed the character test at TD [39]. The Tribunal then turned to consider whether there was another reason why the Cancellation Decision should be revoked at TD [40]. The Tribunal then worked through each of the considerations specified in Direction 110.

8    In relation to the primary consideration as to the “Protection of the Australian Community”, the Tribunal reasoned that the applicant’s past criminal conduct was serious. The Tribunal found that the applicant had an extensive criminal history (TD [44]). The applicant had been convicted of crimes of violence, including offences relating to family violence (TD [47]) and assaulting public officers (TD [48]), and had received custodial sentences (TD [49]). The Tribunal found that the applicant’s offending behaviour demonstrated a trend of increased violence and seriousness (TD [50]). The Tribunal concluded that this factor weighed heavily against revocation: TD [52]. The Tribunal next found that if the applicant offended in the future in the same or a similar manner, it would likely cause serious harm to members of the community, including women and children: TD [57]. The Tribunal considered that the applicant had limited insight into the seriousness of his offending (TD [71], [79]), had attempted to minimise his culpability by blaming others (TD [71]), had not taken up opportunities to rehabilitate (TD [74]), and that the risk factors leading to his offending had not been sufficiently ameliorated (TD [79]). The Tribunal concluded that there was a relatively high risk of the applicant reoffending (TD [72]) and that this was an unacceptable risk which weighed strongly in favour of non-revocation (TD [79]).

9    In relation to the consideration of “Family violence”, the Tribunal found that the applicant had committed an offence of family violence against his partner, in the presence of children. The Tribunal considered this to be very serious and weighed heavily against revocation of the Cancellation Decision: TD [87], [100].

10    In relation to the consideration of the applicant’s “Strength, nature and ties to Australia”, the Tribunal found that the applicant’s family, child and stepchild (who all reside in Australia) would be impacted if he was required to leave Australia by reason of the Cancellation Decision: TD [90]. However, as the applicant had not contacted his (former) partner, the Tribunal was not satisfied that she would be adversely impacted by a non-revocation decision: TD [91]. The Tribunal accepted that the applicant had developed social links with Australian citizens and residents but had only limited work experience and community engagement: TD [92], [97]. The Tribunal gave this consideration some weight in favour of revoking the Cancellation Decision: TD [97].

11    In relation to the consideration as to the “Best interests of minor children”, the Tribunal found that the applicant’s biological child and stepchild would be impacted by a non-revocation decision: TD [99]. However, the Tribunal found that the applicant had not had any contact with these children since August 2023 and had played a very minimal parental role in their lives: TD [101]. The Tribunal accepted that a non-revocation decision would have a detrimental social and emotional impact on these children and gave this some weight in favour of a revocation decision: TD [105].

12    In relation to the consideration as to the “Expectations of the Australian community”, the Tribunal found that the general expectations of the Australian community as set out in Direction 110 applied in the present matter such that the community’s expectations were that the applicant should not be permitted to remain in Australia. The Tribunal gave this significant weight in favour of non-revocation: TD [114].

13    Importantly, in relation to the consideration as to the “Legal consequences of the decision”, the Tribunal reasoned as follows:

117.     The applicant claims that if he is returned to South Sudan, he will be seriously or significantly harmed for the purposes of s36(2)(a) and s36(2(aa) of the Migration Act 1958. By doing so the applicant has attempted to engage Australia's international non-refoulement obligations. It remains open to the applicant to apply for a protection visa.

118.     Paragraph 9.1.2(2) of Direction 110 makes clear that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the s 501/s 501CA stage to consider nonrefoulment issues in the same level of detail as those types of issues are considered in a protection visa application.

119.     The Applicant claims that if he is returned to South Sudan, he will be seriously or significantly harmed by reason of his father's political profile, who was killed in approximately 1995. The Tribunal notes that the applicant’s mother evidence was that two of his siblings continue to live in Juba, South Sudan. While she claimed that the applicant’s father had been killed because of his political profile, no independent evidence was provided to the Tribunal in relation to the applicant’s fathers political profile in South Sudan. Given the passage of time it was not clear to the Tribunal how his father’s political profile would cause the applicant a real chance or a real risk of being seriously or significantly harmed if returned to South Sudan as claimed.

120.     Therefore, given the complexity of the Applicant’s claims for protection, the Tribunal is of the view that it would be more appropriate to defer consideration of the applicant's claims concerning Australia's non-refoulement obligations until they can be fully assessed in accordance with the protection visa application process. In this case the applicant’s claims require a complex assessment of Australia's international obligations and of the applicant’s particular circumstances. As such, the Tribunal finds that the most appropriate course is for the Tribunal to defer consideration of the applicant's non-refoulement claims to the ongoing protection visa application process, during which the applicant's claims will be comprehensively assessed.

121.     The Tribunal notes that the applicant cannot be removed until this process is completed.

122.    Therefore, aside from any non-refoulement implications, the consequence of the Tribunal affirming the decision under review is that the applicant will remain an unlawful non-citizen and be liable for removal from Australia as soon as reasonably practicable. As such pursuant to s 501E of the Act the applicant will not be able to apply for another visa while in Australia, save for a Protection visa and would not be able to satisfy the special return criteria in cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth).

123.    In circumstances where the applicant's removal and exclusion from Australia are intended purposes of the statutory scheme, and these purposes underlie the considerations in Direction 110, the tribunal gives this consideration no weight.

(Emphasis added; footnotes omitted.)

14    In support of the reasoning at TD [123], the Tribunal cited Charlesworth J’s decision in Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [32]-[38].

15    As to considerations relating to the “Extent of impediments if removed”, the Tribunal accepted that the applicant would face impediments in establishing himself on return to South Sudan, including in terms of housing and employment. The Tribunal considered that this factor weighed in favour of revocation but was outweighed by the primary considerations relating to the nature and seriousness of his conduct and the expectations of the community: TD [128]-[129].

16    The Tribunal concluded that, given the very serious nature of the applicant’s offences and the risk to the community should he reoffend, the risk posed by the applicant was not one that should be tolerated by the community. The Tribunal was not satisfied that the countervailing considerations outweighed the protection of the community and expectations of the community. It was not satisfied that there was another reason to revoke the cancellation decision. Accordingly, the Tribunal affirmed the delegate’s decision: TD [134]-[135].

3.    APPLICATION FOR EXTENSION OF TIME

17    The applicant seeks an extension of time to bring his application for judicial review. The period of the delay is over four and a half months.

18    Section 477A(2) of the Act empowers the Court to extend the period for commencing an application for review of a migration decision if the Court is satisfied that it is “necessary in the interests of the administration of justice” to do so. In determining whether an extension of time is necessary in the interests of the administration of justice under s 477A(2), there are no mandatory relevant considerations. The factors relevant to the exercise of the Court’s discretion may include the length of the delay, the explanation for the delay, the prejudice to the Minister or third parties (if any) caused by the delay and the merits of the proposed application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

19    It has been held that there are no “hard and fast rules” as to the “various lengths of delay” and each case must be considered in all of its circumstances: CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610 at [51] (Thomas J). Even where the length of the delay is significant, the delay is to be evaluated against the evidence of the applicant’s personal circumstances: BHRR v Minister for Immigration and Citizenship (No 2) [2026] FCA 250 (Wheelahan J) at [70]; MCVN v Minister for Immigration and Citizenship [2025] FCA 1271 at [37] (Horan J).

20    Ultimately, the question before the Court remains whether it is necessary in the interests of the administration of justice that the extension of time be granted. That phrase is “deliberately broad” and confers a “broad discretion” upon the Court: Katoa at [12].

21    The applicant accepted that there was a delay here but submitted that the delay was not “significant” or “extreme” so as to require “exceptional circumstances” to be established. The unchallenged evidence as to the reasons for the delay were that:

(a)    the applicant suffers from chronic depression and opioid dependency;

(b)    receipt of the Tribunal’s Decision had a significant impact on the applicant’s already poor mental health and he stopped talking to his family as he felt it was too much for him to handle;

(c)    on 3 October 2025, after a referral from the Refugee Advice and Casework Service (RACS), the applicant received advice from a Legal Aid solicitor by telephone, including in relation to the 35-day time limit for commencing judicial review proceedings;

(d)    the solicitor also sent the applicant the forms required for an application for judicial review and an explanation on how to file the forms;

(e)    however, the solicitor advised the applicant that Legal Aid NSW could only provide an assessment on whether they could assist the applicant after he sent through a copy of his court book;

(f)    while the applicant initially sought to act on the advice of Legal Aid, he only had his mobile phone to look at materials sent to him by Legal Aid;

(g)    the applicant did not have access to a “printer or computer” to complete the application and could not lodge these forms whilst being in immigration detention;

(h)    on 8 December 2025, the applicant realised he had missed the deadline and contacted Legal Aid by email requesting assistance to file his application because he could not fill out the forms himself and he could not afford a lawyer;

(i)    while Legal Aid again sent the applicant instructions on how to file the documents, the applicant was again in the position of not being able to do so himself and became overwhelmed and his depression worsened;

(j)    the applicant’s conditions only began to improve in or about March 2026, when he started taking Mirtazapine for his depression;

(k)    on 14 January 2026, RACS contacted Legal Aid to follow up on the referral of the applicant and the matter was re-allocated internally within Legal Aid;

(l)    on 10 February 2026, Legal Aid approved a brief to counsel to advise on commencing judicial review proceedings;

(m)    the applicant was contacted on the same day and his instructions were obtained, resulting in a preliminary grant of legal aid;

(n)    Counsel’s advice was received by Legal Aid on 4 March 2026;

(o)    on 5 March 2026, instructions were obtained from the applicant to commence proceedings and a full grant of Legal Aid was approved to represent the applicant in these proceedings; and

(p)    between 3 and 16 March 2026, Legal Aid prepared the present application and supporting affidavit, including obtaining instructions from the applicant in relation to why he did not commence proceedings within time and obtaining access to the applicant’s medical records from immigration detention.

22    In short, the evidence establishes that the applicant’s delay is to be explained by a combination of factors relating to his mental health, limited access to legal assistance, difficulties associated with having access to resources to complete and lodge the necessary documentation with the Court, and delays in securing legal aid funding to obtain appropriate legal assistance. Whilst aspects of the applicant’s explanations are unexceptional, I am satisfied that their cumulative effect provides a convincing explanation as to why the application was not filed at an earlier point in time.

23    In my view, the more persuasive factors here are the merits of the application and the absence of prejudice to the Minister. Appropriately, the Minister did not submit that he would suffer any prejudice beyond an expectation as to the finality of the validity of the Tribunal’s Decision. As to the merits of the application, I consider there to have been significant merit in the grounds raised by the applicant to be satisfied that it is in the interests of justice to grant the extension of time, irrespective of whether the grounds are ultimately successful. In the grant of an extension of time, an assessment of the merits must necessarily involve an impressionistic evaluation. I am satisfied that on such an impressionistic evaluation, the grounds raised by the applicant raise meritorious arguments as to the Tribunal’s reasons and reasoning process relating to the legal consequences of the decision.

24    In all the circumstances, I am satisfied that the application for an extension of time should be granted.

4.    CONSIDERATION

4.1    Grounds (1)(a) and (b)

25    By Grounds 1(a) and (b), the applicant takes issue with the Tribunal’s reasons at TD [123], where the Tribunal stated that, “the applicant's removal and exclusion from Australia are intended purposes of the statutory scheme, and these purposes underlie the considerations in Direction 110, the tribunal gives this consideration no weight”. The applicant submitted that this part of the Tribunal’s reasons disclosed that the Tribunal misconstrued the Act and Direction 110. It was submitted that by reasoning that the applicant’s removal and exclusion from Australia were “intended purposes” of the statutory scheme, the Tribunal engaged in the error which Rangiah J had found in Singh.

26    There was no dispute between the parties that paragraph 9.1 of Direction 110 required the Tribunal to consider the “Legal consequences of decision under section 501 or 501CA”. It was also common ground that the Tribunal was required to consider the “direct and immediate statutorily prescribed consequences of the decision in contemplation” having regard to the applicant’s particular circumstances: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ).

27    Nor was there any dispute that, where an applicant seeking review has not previously applied for a protection visa but makes representations to the effect that his or her removal would be contrary to Australia’s international non-refoulement obligations, the Tribunal is permitted to defer assessment of whether those obligations are engaged on the basis that it is open to the applicant to apply for a protection visa: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [30] (Kiefel CJ, Keane, Gordon and Steward JJ).

28    Although the abovementioned points of principle were not in dispute, the parties were at issue as to the significance to be attached to Rangiah J’s reasons in Singh. In Singh, the Tribunal had concluded that whilst the relevant applicant’s deportation and exclusion from Australia were “…inevitable legal consequences of an adverse decision, they are the consequences intended by Parliament” and gave that consideration “neutral weight”: see at [16]. Rangiah J reasoned that contrary to the Tribunal’s findings:

(a)    s 501CA(4) confers a wide discretionary power, and there “is not expressed or implied legislative preference for the making of a decision to either revoke or affirm the decision”: at [32];

(b)    Parliament’s intention was that the “Tribunal must take into account the legal consequences of the decision under consideration” and that as no particular weight is afforded to such a consideration, it must “also have been Parliament’s intention that the Tribunal would determine for itself the weighting it should attribute to the legal consequences of the decision under consideration”: at [33];

(c)    the statement about Parliament’s intention in “absolute terms was inaccurate: such consequences are only intended by Parliament if the Tribunal decides not to revoke the cancellation decision”: at [34]; and

(d)    imputed to “Parliament an intention or preference for the making of a decision adverse to the applicant” which was “not discernible from s 501CA(4) of the Act”: at [34].

29    As a result, Rangiah J concluded that the Tribunal had misconstrued s 501CA(4) of the Act in attributing neutral weight to the legal consequences of the non-revocation decision: at [35].

30    Rangiah J also determined that the Tribunal had made a further error. In Singh, the Tribunal considered that the relevant applicant’s removal and exclusion from Australia “were merely possible, and not inevitable, consequences of such a decision”: at [36]. Rangiah J found that by reasoning in this way, the Tribunal had failed to comply with the requirement to take into account the direct and immediate legal consequences of an adverse decision, which included that “the applicant was immediately made liable to detention, removal from Australia and preclusion from returning”, and that this amounted to jurisdictional error: at [38]-[39].

31    Rangiah J’s reasons in Singh have been considered by other judges of this Court: see, eg, Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [32]-[37] (Charlesworth J); Da Costa Junior v Minister for Immigration and Multicultural Affairs [2025] FCA 1423 at [37] (Wheelahan J).

32    The facts in Stoneley were that the Tribunal had observed that the relevant applicant had not been the subject of a “protection finding” and that there was no information to suggest that he would be detained for a prolonged period. The Tribunal then stated:

220.     No concerns other than those relating to the Applicant’s removal and potentially permanent separation from family and friends and the challenges of resettlement in New Zealand were raised by the Applicant. Nor did he make any submissions that the legal consequences of the decision should weigh in favour of revocation.

221.     The Respondent submitted the legal consequences of removal and exclusion are the intended consequence of the operation of s 501 cancellation and that the consideration should carry neutral weight.

222.     The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501. The Tribunal considers this consideration carries neutral weight in the Applicant’s case.

(Emphasis added and footnotes omitted.)

33    Charlesworth J observed at [33] that in Singh, Rangiah J had found two relevant errors. The first being that the Tribunal had erroneously proceeded on the assumption that Parliament had expressed a preference for there to be a non-revocation decision and the second being that the Tribunal had failed to grapple with the relevant applicant’s claim that a legal consequence of the non-revocation decision included his prolonged and possibly indefinite detention. Charlesworth J contrasted the facts in Singh to those in Stoneley as follows at [35]-[37]:

35    It is not disputed that the legal consequence of a visa cancellation decision is that the former visa holder will be an unlawful non-citizen for the purposes of the Act. By virtue of that status, the person will be liable to be detained, removed from Australia, returned to his or her home country, prohibited from applying for another visa or subject to periods of exclusion and special return criteria: Act, ss 189, 196, 197C, 198, 501E, 501F. Those consequences follow as a matter of statutory construction and it may be said that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen.

36    However, Parliament must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in the person’s visa being be restored. In that event, the adverse consequences described above will not befall them. That nuance is not given express mention in the Tribunal’s reasons. However, it does not follow that its decision is affected by jurisdictional error. The Tribunal in this case did not proceed from a presumption that Parliament had evinced a preference for a decision that the cancellation decision should not be revoked. Nothing in Singh binds me to conclude otherwise. Indeed, to conclude otherwise would be to ignore the importance of reading the reasons of an administrative decision-maker fairly and as a whole, without an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272).

37    The Tribunal plainly understood that revocation of the cancellation decision would mean that the applicant would avoid the statutory consequences that he otherwise faced at a very personal level. The entire Reasons are dedicated to considerations weighing for or against revocation to varying extents. That demonstrates an appreciation on the Tribunal’s part that the question of whether the applicant should suffer the adverse legal consequences of the cancellation decision was a matter for its own evaluation having regard to the particular facts and circumstances of his case. It is true that the particular facts and circumstances are not grappled with by the Tribunal under the heading “Legal consequences of decision under section 501 or 501CA”. However, the reason for that is obvious: they are dealt with at length elsewhere by the Tribunal, culminating in findings that weighed in favour of a decision to revoke the cancellation decision and so spare the applicant the legal consequences that would otherwise flow from it. Unlike the facts in Singh, the Tribunal may be understood to have observed (correctly) that the legal consequences of its own decision are subsumed in its evaluation of other considerations prescribed by Direction 99. To my mind, that explains why the Tribunal used the language of neutral weight, and why it observed that the applicant had made no additional submission on the topic warranting further consideration under the discrete heading of “legal consequences”. The circumstances might have been different if the applicant was a person who faced prolonged or indefinite detention, whether because he was a person to whom Australia owed non-refoulement obligations or otherwise.

(Emphasis added.)

34    In Da Costa Junior, Wheelahan J considered a situation where the Tribunal had also given neutral weight to the legal consequences of the relevant decision at issue in that case. His Honour did not consider there to be any error as the Tribunal had elsewhere in its reasons considered the practical substance of the legal consequences of that decision: at [28]-[33]. Wheelahan J distinguished Singh at [34]-[35], as follows:

34    Returning now to Singh, the Tribunal’s reasons in this matter do not share any of the four errors which attended the review in Singh. Taking the four errors in turn –

(1)    It cannot be said that the Tribunal in this case attributed to Parliament an intention or preference for the making of a decision adverse to the applicant such that it could be said that the Tribunal misapplied s 501CA(4) of the Act. That conclusion is not open when the Tribunal squarely considered the matters relied on by the applicant in his contentions as being the legal consequences of the decision in a way that was favourable to the applicant.

(2)    For the same reasons, the second error identified in Singh was not made by the Tribunal in the present case.

(3)    No error that resembles the third error identified in Singh falls for consideration in this case because there was no claim by the applicant before the Tribunal that Australia’s non-refoulement obligations might be engaged, as the Tribunal noted at [54] of its reasons. And as I have mentioned, counsel for the applicant clarified that he did not rely on this aspect of Singh as being applicable to the present case.

(4)    No error of the type identified as the fourth error in Singh arises in this case. There were no circumstances that indicated that the applicant would not be removed from Australia as soon as reasonably practicable, which was the direct legal consequence provided for by s 198 of the Act. The Tribunal acted on the basis that the applicant would be removed as soon as reasonably practicable to Brazil and addressed the consequences of that course and the applicant’s contentions in that regard.

35    A similar method of analysis was undertaken by Charlesworth J in Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 (Stoneley) where the applicant relied on claimed comparisons with Singh, but where her Honour gave attention to the reasons of the Tribunal under consideration in the case before her, noting at [36] the importance of reading the reasons of an administrative decision-maker fairly and as a whole, without an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In Stoneley, Charlesworth J held at [36] that nothing in Singh bound her Honour to find error in the reasons of the Tribunal that were before her.

35    His Honour rejected the submission that Stoneley was plainly wrong and should not be followed: at [36]-[38].

36    In the present case, the applicant submitted that the Tribunal had committed the same error as in Singh because it had reasoned that the applicant’s removal and exclusion was an intended purpose of the statutory scheme and the principles underlying Direction 110. The applicant submitted that removal and exclusion was only an intended consequence of the statutory scheme if an adverse decision is made. The applicant contended that s 501CA confers a wide discretionary power which did not disclose an intention or preference for a decision leading to the applicant’s removal and indefinite exclusion from Australia: citing Singh at [32]. It was further submitted that the present facts were distinguishable from those considered by Charlesworth J in Stoneley at [32]-[38] because there Charlesworth J found that, unlike the Tribunal in Singh, the Tribunal “did not proceed from a presumption that Parliament evinced a preference for a decision that the cancellation decision should not be revoked”: at [36]. It was further submitted that, unlike Singh and the present case, in Stoneley the applicant did not face “prolonged” detention because of non-refoulement obligations: at [37]. The applicant contended that the prospect of the applicant facing “prolonged” detention was evident by the Tribunal’s own admission at TD [120]-[121] that the applicant’s protection claims should be deferred to a protection application due to their complexity and that the applicant “could not be removed until this process is completed”.

37    I do not accept the applicant’s contention.

38    As Charlesworth J reasoned in Stoneley and Wheelahan J subsequently reasoned in Da Costa Junior, the Tribunal’s reasons must be read fairly and as a whole, without an eye too keenly attuned to the perception of error: citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). As in Stoneley and in Da Costa Junior, I am not satisfied that the Tribunal proceeded on the basis that the removal of the applicant was a presumed or intended result that was to be imputed to Parliament. The Tribunal well understood that it had a broad discretion as to whether to revoke or not revoke the Cancellation Decision. When read as a whole, the totality of the Tribunal’s reasons demonstrate a careful and calibrated weighing of the factors for and against revocation or non-revocation of the Cancellation Decision, with factors such as the applicant’s ties to the Australian community and the best interests of relevant children weighing in favour of revocation and other factors weighing in favour of non-revocation. It follows that the Tribunal correctly understood the operation of s 501CA(4), and plainly understood that the removal of the applicant was not the only intended consequence to be imputed to Parliament. That the Tribunal plainly understood the correct operation of s 501CA(4) is demonstrated by its statement at TD [122] that “…the consequence of the Tribunal affirming the decision under review is that the applicant will remain an unlawful non-citizen and be liable for removal from Australia as soon as reasonably practicable” (emphasis added). Thus, the Tribunal well understood that the relevant consequence of detention and removal only arose if the Tribunal affirmed the decision under review. The Tribunal’s correct characterisation of s 501CA(4) is further reinforced by the fact that at TD [123] the Tribunal inserted a footnote containing a reference to Stoneley at [32]-[38]. This reference to Stoneley is indicative of the fact that the Tribunal had directed itself to the correct operation of s 501CA(4).

39    In my view, when properly read in the context of the reasons as a whole, the Tribunal was stating at TD [123] that, if it affirmed the non-revocation decision made by the delegate, the applicant was to be detained and then removed from Australia (as an unlawful non-citizen), and this consequence was the intended consequence of how the statutory scheme operates. I do not regard the Tribunal as reasoning that the applicant’s exclusion and removal was to be presumed. If that were so, the Tribunal’s reasons in assessing each of the considerations for and against revocation or non-revocation would have been plainly unnecessary.

40    Nor do I accept the applicant’s contention that the position here was like that in Singh as to the prospect of the applicant’s indefinite detention. The Tribunal made clear at TD [121]-[122] that as the applicant had not been the subject of a protection finding, these were matters that had to be deferred. Whether the Tribunal’s Decision to attribute “no weight” to the relevant consideration gives rise to legal unreasonableness or irrationality is a separate matter I address below.

41    Like Charlesworth J and Wheelahan J, I do not regard the decision in Singh as enunciating a principle of fixed application. Rather, as their Honours respectively highlighted in each of Stoneley and Da Costa Junior, each case must be assessed on its own facts and by reference to the totality of the Tribunal’s reasons.

42    Accordingly, I am not satisfied that the applicant has established Grounds 1(a) and (b).

4.2    Ground 1(c) and (d)

43    By Ground 1(c) and (d), the applicant contends the Tribunal separately fell into error in its reasoning relating to paragraph 9.1 of Direction 110 by failing to consider the legal consequences of continued immigration detention and indefinite exclusion from Australia, and to factor those matters into its weighing exercise.

44    It was not disputed that the indefinite exclusion of a person from returning to Australia is a legal consequence of a decision to affirm a non-revocation decision which the Tribunal was obliged to consider: see Doan at [25], [32]. That is so even if there is a possibility that the person might be able to obtain a protection visa, albeit that may affect the weight given to the consideration: Singh at [38].

45    The applicant submitted that the Tribunal’s reasons at TD [122]-[123] evinced no engagement with the impact on the applicant of his continued detention and indefinite exclusion from Australia having regard to his circumstances. The applicant submitted that there was: (a) no explanation as to how the Tribunal reached the conclusion to afford “no weight” to the consideration of the legal consequences of the decision except for relying upon its view as to the intended purposes of the statutory scheme and Direction 110; (b) there were no references in TD [122]-[123] to other parts of the reasons which were said to inform the conclusion that “no weight” should be given to this consideration, and (c) the Tribunal did not return to the legal consequences when undertaking the express weighing of different considerations in its conclusions at TD [132]-[134]. The applicant contended that the Tribunal’s reasons were analogous to those considered by Banks-Smith J in Doan at [26]-[28].

46    I do not agree with the applicant’s contentions.

47    The Tribunal was aware that continued detention and indefinite exclusion from Australia would be a consequence of a non-revocation decision given that it stated: (a) at TD [121] that the applicant could not be removed until the process relating to any protection visa application made by the applicant was completed (which would necessarily mean that he would remain in immigration detention in the meantime); and (b) at TD [122] that the applicant’s removal from Australia would mean that he would not be able to apply for any other visa other than a Protection visa, and would not be able to satisfy the special return criteria in cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth). These parts of the Tribunal’s Decision disclose that the Tribunal considered the legal consequences of a non-revocation decision.

48    In other parts of its reasons, the Tribunal considered the practical implications or consequences of the applicant’s exclusion from Australia in the other considerations it addressed. For example, it accepted that the applicant’s family members in Australia (but not his former partner) would suffer some detriment and that the applicant’s ties to Australia would be severed: TD [90], [91], [97]. It also accepted that the best interests of two children favoured revocation of the Cancellation Decision so that the applicant would not be indefinitely excluded and the children could have some relationship with the applicant: TD [105]. The Tribunal also accepted that the applicant would face impediments in South Sudan if he was indefinitely excluded from Australia: TD [128]-[129]. All of these matters were ones which the Tribunal weighed in favour of revocation of the Cancellation Decision. In turn, all these matters were balanced in the Tribunal’s final weighing and determination of the matter. Specifically, the Tribunal observed at TD [134] that considerations relating to the protection and expectations of the Australian community outweighed the “countervailing considerations”, which were clearly a reference to all those matters the Tribunal considered and weighed in the applicant’s favour.

49    Although the Tribunal did not specifically refer to each of these matters at TD [121]-[123] where it was considering the legal consequences of the decision, I am not satisfied that the Tribunal failed to consider the immediate and direct legal consequences of the applicant’s exclusion from Australia in light of his circumstances and those of his immediate family members. The Tribunal was not required to again consider all these matters under the heading “legal consequences” in circumstances where it had dealt with them elsewhere: see Stoneley at [37]-[38]; Da Costa Junior at [32]-[33].

50    I do not consider the result in Doan bears upon whether the Tribunal erred in the present case. In Doan, Banks-Smith J accepted that the Tribunal could permissibly deal with the consequences of its decision, including exclusion from Australia, within its overall consideration and weighing process: at [41]. However, her Honour concluded that on the facts of that case, the Tribunal had not done so. Her Honour’s reasoning reflects the facts of that case and does not impact on the outcome of this case.

51    Accordingly, I am not satisfied Grounds 1(c) and (d) have been established.

4.3    Ground 1(e)

52    By Ground 1(e), the applicant contends that the Tribunal’s Decision to afford “no weight” to the consideration of the legal consequences of the decision was unreasonable and/or illogical or irrational. The applicant’s contentions in support of Ground 1(e) involve two distinct but interrelated arguments.

53    First, the applicant submits that it was illogical or irrational for the Tribunal at TD [122]-[123] to rely upon the fact that the consequences of removal and exclusion are derived from the statutory scheme as a basis to afford them “no weight”. In support of this argument, the applicant relied upon the decision of Lee J in Le.

54    Second, the applicant relied upon Rangiah J’s decision in Singh at [42] to support his submission that the conclusion reached by the Tribunal to give “no weight” to this consideration was illogical or irrational because it did not consider the practical realities of his detention.

55    I am satisfied that Ground 1(e) has been established. It is necessary to explain why.

56    It is to be accepted that the threshold for establishing legal unreasonableness is high and it is not a finding lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] (Allsop CJ, Besanko and O’Callaghan JJ) (Djokovic). The “correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] (Crennan and Bell JJ). The ultimate question has been framed as whether the satisfaction of the relevant state of affairs or matter was “not based on findings or inferences of fact supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material”: Djokovic at [35] quoting Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [52] and [173].

57    It is also to be accepted that the giving of weight, or attributing neutral or no weight, to a relevant consideration is a matter within the “decisional freedom” of the decision-maker: CMP25 v Minister for Immigration & Multicultural Affairs [2025] FCAFC 199 (CMP25 FCAFC) at [26]-[28], [30] (Perry, Cheeseman and Shariff JJ). A determination made not to give weight (either for or against visa cancellation) to the legal consequences of the decision may not be unreasonable, illogical or irrational, even if others may regard the determination to be harsh: RRFM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 27 at [36] (Nicholas, Yates and Burley JJ). In this context, it has been held that if the decision-maker does not make a finding about the likelihood of particular consequences occurring, on the basis that the likelihood of those consequences is a matter of speculation, it is open for the Tribunal to afford no weight to those consequences: RRFM at [36]-[37]; CMP25 v Minister for Immigration & Multicultural Affairs [2025] FCA 480 at [56]-[59] (Raper J).

58    Importantly, the requisite level of engagement by the decision-maker with the representations made by an applicant must occur within the bounds of rationality and reasonableness: Plaintiff M1 at [25]. What is required in this regard will depend on the nature of the representations and their form and content.

59    In the present case, the Tribunal recognised that the applicant had claimed that if he was returned to South Sudan he would be seriously or significantly harmed: TD [117] and [119]. The Tribunal correctly recognised that it was open for the applicant to apply for a protection visa: TD [119]. The Tribunal then reasoned that (as the applicant’s claims concerned a complex assessment of Australia’s international non-refoulement obligations), the “most appropriate course” was to “defer consideration of the applicant's non-refoulement claims to the ongoing protection visa application process, during which the applicant's claims will be comprehensively assessed”: TD [120]. The Tribunal noted that “the applicant cannot be removed until this process is completed”: TD [121].

60    Pausing at this juncture, it is clear that the Tribunal was not willing to speculate about what might occur in the event that the applicant made an application for a protection visa. However, what it did recognise was that the applicant would not be removed until that complex assessment process was completed. It therefore considered and understood (correctly) that the applicant would continue to remain in immigration detention, but was not willing to speculate as to the outcome of any application made by the applicant for a protection visa or as to the duration of his ongoing detention.

61    The Tribunal then recognised that, aside from the non-refoulement claims, the consequence of affirming the decision under review was that the applicant would remain an unlawful non-citizen and be liable for removal “as soon as reasonably practicable” with the consequence that he could not apply for another visa: TD [122]. It then stated that as the applicant’s removal and exclusion were the intended purposes of the statutory scheme, it gave this consideration “no weight”: TD [123].

62    In coming to this conclusion, as earlier observed, the Tribunal had considered the impact of the applicant’s removal on the applicant and his immediate family members elsewhere in its reasons. It had done so in considering the applicant’s ties to the Australian community and in addressing the best interests of applicable children.

63    The Tribunal’s reasons disclose that it was aware that the result of affirming the decision under review was that the applicant would be detained and then removed as soon as reasonably practicable. However, the Tribunal’s reasons do not disclose why this consideration was to be given “no weight” other than that this was the intended result of the statutory scheme. To my mind, that discloses the circularity in reasoning that Rangiah J identified in Singh and Lee J identified in Le. That element of circularity is not gainsaid by the fact that the Tribunal was not prepared to speculate about the outcome of any application that the applicant might make for a protection visa. The Tribunal did not say that this factor was to be given no weight because it was not willing to speculate as to the outcome of any application that the applicant might make for a protection visa and/or because it could not predict the duration of his ongoing detention.

64    In explaining the circularity in the Tribunal’s reasons, it is convenient to contrast the facts here with other decisions.

65    It is useful to commence with the decision of the Full Court in RRFM. The facts there were that the Tribunal did not make any finding as to the weight to be given to the possibility of the applicant being indefinitely detained. As to the absence of such a finding, the Full Court reasoned as follows at [36]-[37]:

…the fact that the Tribunal did not express itself in terms of the “weight” it placed on the possibility of the appellant being indefinitely detained is explained by the fact that the Tribunal was not willing to speculate about the prospect of the appellant being granted a protection visa. Given that approach, it was not in any position to attribute any specific weight (eg. substantial or slight) to this consideration.

What is clear is that the Tribunal came to its ultimate conclusion having taken into account, and actively engaged with, the appellant’s representation that he would experience prolonged or indefinite detention if not returned to Afghanistan. The Tribunal was not required, in considering the appellant’s representations, to make any specific finding as to the likelihood that the appellant would experience prolonged or indefinite detention, any more than it was required to make any specific finding as to the likelihood that the appellant would be granted a protection visa in the future.

(Emphasis added.)

66    Unlike the present case, the reasons of the Tribunal considered by the Full Court in RRFM at [14] did not include any statement to the effect that the Tribunal had given “no weight” to the legal consequences of the decision because these were the intended consequences of the Act.

67    In Singh, there was an express finding that “neutral weight” should be given to the legal consequences as set at [28] above. For present purposes, it will be recalled that Rangiah J found that the Tribunal erred by giving neutral weight to this consideration on the basis that it was the intended consequence of the statutory scheme.

68    In CMP25, Raper J distinguished Singh. In CMP25, the Minister had afforded “no weight” to the legal consequences of his decision because the Minister “was aware that the applicant would remain in detention until removed and it was not known at that time for how long”: [51]. As Raper J observed, the applicant had withdrawn an application for a protection visa, and it was not known what the applicant would then do to agitate his protection claims: at [51]. Her Honour observed that it was not known “whether the applicant would make a request under s 48B, whether the Minister would allow such a request to be made, when any protection visa application would be decided, and what the outcome of such a process might be”: [51]. Her Honour later stated at [58] that the Minister did not place weight on the consideration “given the extent of the unknown”. Raper J distinguished these facts from those in Singh at [59], as follows:

Furthermore, I do not consider the reasoning of Rangiah J in Singh assists the applicant. Rangiah J’s careful reasoning is not critical of such an approach nor authority for the proposition that it is not open for the Minister to not attribute any weight to the legal consequences of the decision. Rather his reasoning exposes error, in so not attributing weight, because of a misunderstanding of Parliament’s intention regarding the effect of s 501CA(4). Singh does not stand for the proposition that any time that a non-citizen spends in immigration detention is a matter that must be given weight in his or her favour in the exercise of any statutory power under the Act. Unlike Singh, the Minister’s reasons in this case are transparent as to why he considered the fact of the applicant being taken into detention to neither weigh in favour of, nor weigh against, the applicant (see M[73]–[80]).

69    Again, as with RRFM, the relevant reasons of the Tribunal considered by Raper J in CMP25, unlike the present case, did not include any statement to the effect that the Tribunal had given “no weight” to the legal consequences of the decision because these were the intended consequences of the Act.

70    In Stoneley, as noted above, Charlesworth J reasoned that, unlike the facts in Singh, the Tribunal may be understood to have observed that the legal consequences of its own decision were subsumed in its evaluation of other considerations prescribed by (the then) Direction 99. However, Stoneley was a case where the applicant had not made any claims as to Australia’s non-refoulement obligations in respect of his removal. As her Honour expressly stated at [37]:

To my mind, that explains why the Tribunal used the language of neutral weight, and why it observed that the applicant had made no additional submission on the topic warranting further consideration under the discrete heading of “legal consequences”. The circumstances might have been different if the applicant was a person who faced prolonged or indefinite detention, whether because he was a person to whom Australia owed non-refoulement obligations or otherwise.

(Emphasis and additional emphasis added.)

71    Thus, although Stoneley was a case in which the relevant reasons of the Tribunal did refer to the legal consequences of the decision being those intended by Parliament, it was not a case where (as Charlesworth J expressly noted) there was any issue raised as to the prospect of prolonged or indefinite detention or non-refoulement obligations.

72    Likewise, Da Costa Junior was also a case where there were no issues concerning non-refoulement or other barriers to the removal of the applicant to Brazil, and there was no claim that pending removal of the applicant to Brazil as soon as reasonably practicable detention would be prolonged: at [7].

73    The facts in Le also did not involve any claims relating to non-refoulement. However, the Tribunal’s reasons canvassed the legal consequences of the decision as identified by the applicant as detention of indeterminate length, limited opportunity to apply for another visa while in Australia, and permanent exclusion from Australia: [23]. As Lee J recorded at [23], the Tribunal had stated:

I acknowledge the Applicant’s submissions in relation to this consideration. I nonetheless recognise the legal consequences for the Applicant of a decision not to revoke the mandatory cancellation of her visa as including detention of indeterminate length, limited opportunity to apply for another visa while in Australia and permanent exclusion from Australia as being significant and real consequences for the Applicant. This is particularly in circumstances where her husband, son, daughter and stepson are Australian citizens. Nonetheless, given these are intended legal consequences, and given the Applicant’s submissions, I conclude that Other consideration 1 is neutral in terms of revocation of the original decision to mandatorily cancel the Applicant’s visa.

(Emphasis added.)

74    Lee J also distinguished Singh and at [41] accepted the Minister’s submission that the Tribunal had:

…demonstrated, throughout its reasons, an appreciation that removal was contingent upon the exercise of the discretion conferred by s 501CA(4). It also referred elsewhere to the practical consequences of removal and gave substantial weight to those matters in considering the applicant’s ties to Australia.

75    His Honour here was accepting the type of argument that was upheld in Stoneley and Da Costa Junior. However, Lee J proceeded to find that the Tribunal had nevertheless engaged in an error in giving this consideration “neutral weight”. His Honour reasoned as follows at [43]-[54]:

Importantly, the Tribunal expressly described the legal consequences of the decision as regards revocation of the mandatory cancellation of the Applicant’s visa as having “significant and real consequences for the Applicant”. The question is what the Tribunal then did with its evaluative assessment or conclusion that those consequences were “significant and real”.

The Tribunal concluded that the legal consequences consideration was “neutral” because the consequences were “intended legal consequences” and because of the applicant’s submissions. In my view, that reasoning discloses an error.

The vice in the reasoning is not a failure to appreciate the consequences flowing from a non-revocation decision. Rather, the vice lies in the explanation given by the Tribunal for why consequences acknowledged to be “significant and real” ultimately counted for nothing in the evaluative exercise required by s 501CA(4).

Paragraph 9.1 of Direction 110 required the Tribunal to consider the legal consequences of the decision. The evident purpose of that consideration is to require decision-makers to confront and evaluate the legal consequences to the applicant flowing from a refusal to revoke the cancellation decision.

The fact that such consequences arise under the statutory scheme cannot, of itself, explain why they should be treated as neutral. If the circumstance that the consequences are contemplated by the legislation were sufficient to deprive them of operative significance, the consideration would largely be emptied of substantive content.

The legal consequences identified in para 9.1 are necessarily consequences created by statute. To treat that characteristic as the reason why they should attract no weight is circular. It substantially undermines the purpose of the consideration itself.

That is, in substance, what occurred here. The Tribunal accepted that the consequences were significant and real. It then neutralised those consequences because they were consequences contemplated by the statutory framework.

I do not accept that this was merely a permissible attribution of weight. Of course, the weight to be given to a consideration is for the administrative decision-maker. But this was not simply a case in which the Tribunal, having evaluated the legal consequences in the applicant’s circumstances, gave them little or no weight. The problem is that the Tribunal explained its conclusion by reference to a consideration which could not rationally perform the work assigned to it. The consequences were treated as neutral because they were statutory consequences. That is the circularity.

As I have noted, the reasons were carefully structured. It is to the Tribunal’s credit that it is possible to discern from the reasons what is being considered, and where it is being considered. The present assertion of error is not answered by saying that the Tribunal addressed family hardship elsewhere. The hardship to family members was addressed under the separate consideration concerned with the strength, nature and duration of ties to Australia. The legal consequences identified at [157] were consequences for the applicant herself: detention of indeterminate length, limited opportunity to apply for another visa while in Australia, and permanent exclusion from Australia.

I accept, of course, that the Tribunal was not required to repeat itself; nor was it required to give legal consequences determinative weight. But having identified those consequences as “significant and real”, the Tribunal could not lawfully render them neutral merely because they were consequences contemplated by the statutory scheme.

The Minister relied heavily on Stoneley and Da Costa Junior. Those cases demonstrate that a Tribunal does not necessarily err merely because it recognises that the relevant consequences are consequences contemplated by the statutory scheme; however, neither case establishes that a tribunal may treat consequences which it has identified as “significant and real” as neutral for that reason alone.

That explanation is what gives rise to the error. It is not a matter of searching for error with undue vigilance. It is a matter of taking the Tribunal’s reasons as they are expressed.

76    Lee J further made clear at [63] that the Tribunal’s error did not lie in its failure to appreciate the practical consequences of a non-revocation decision or because the Tribunal had misconstrued the Act, but because the Tribunal treated the consideration relating to the legal consequences of the decision as neutral because those consequences were intended, even though those consequences were said to be “significant and real”. His Honour stated at [63] that:

The fact that a consequence is a consequence contemplated by the Act explains why it arises. It does not, without more, explain why a consequence accepted to be significant and real should be treated as carrying no weight in the evaluative exercise required by s 501CA(4) and Direction 110.

77    Lee J drew support from the conclusion that Longbottom J had reached in Williams v Minister for Immigration, Citizenship & Multicultural Affairs [2026] FCA 341 at [65]-[69]. In Williams, the Assistant Minister had stated:

106.    [The Applicant] has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is necessary in this case. Further, [The Applicant] is not covered by a protection finding as defined in S197C of the Act.

107.    [The Applicant] submits that the prospect of permanent exclusion from Australia represents a grave legal consequence for him, and that this outcome, which effectively severs his ability to return to Australia, must be considered a significant factor …

108.    While I accept that the removal and visa limitations which result from a decision to cancel [the Applicant’s] visa would likely sever his ability to return to Australia, I find that this is the intended consequence of the operation of s 501 of the Act. Accordingly, I afford this consideration neutral weight.

78    Longbottom J considered that the decisions in Singh and Stoneley involved a different section of the Act (s 501CA) and, in any event, turned on their own facts: at [65]. Her Honour then reasoned at [68] that the Assistant Minister had erred because:

I am not persuaded that I should read the reference to “neutral weight” in [108] as reflecting that the Assistant Minister subsumed his consideration of the legal consequences into the evaluation of the other prescribed considerations: cf, Stoneley at [37]. That is not what the reasons state: CKT20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318 at [133] (Katzmann, Charlesworth and Burley JJ) and the authorities there cited; cf, Stoneley at [27] and [37]. The vice with the finding at [108] is that it reflects a misunderstanding of the power the Assistant Minister was exercising. That power was discretionary (not mandatory) and, as such, any adverse legal consequences from exercising the discretion under s 501BA of the Act could not be construed as “intended”.

79    In JRX25 v Minister for Immigration and Citizenship [2026] FCA 1170, Dowling J considered some of the abovementioned cases and distinguished Le. His Honour reasoned at [81] that the Tribunal’s conclusion (in JRX25) to give “neutral weight” to the legal consequences was to be viewed in light of the fact that the Tribunal acknowledged that the applicant was “liable to be detained” and removed, but this was to be considered together with the inference that a protection visa application would be made and the Tribunal was reluctant to speculate about uncertain future events. His Honour considered the position to be similar to CMP25, and unlike Singh and Le: at [84]-[87]. His Honour also drew support from the decision of Horan J in XPLW v Minister for Immigration & Multicultural Affairs [2026] FCA 210 at [59]. Horan J had reasoned at [59] that “it was neither irrational nor unreasonable for the Minister not to attribute any specific weight to the likelihood that the applicant would be detained until the determination of any protection visa application or until his removal from Australia, as a statutory consequence of the cancellation of his Partner visa”.

80    Importantly, the Tribunal’s reasons as considered by Dowling J in JRX25 at [17]-[25] did not include any statement made by the Tribunal that the legal consequences were to be given no or neutral weight because they were those which were intended under the Act.

81    In the present case, the Minister submitted that the decision in Singh was distinguishable because the Tribunal here had not misconstrued s 501CA(4) of the Act and that Stoneley and Da Costa Junior should be followed because it was evident that the Tribunal had considered the consequences of the decision elsewhere in its reasons. Relying upon RRFM and CMP25 FCAFC, the Minister submitted that there was no error in the Tribunal attributing no weight to a factor that it had clearly considered. The Minister further submitted the decision in Le was distinguishable as it was one where the Tribunal itself had described the legal consequences to the applicant as “significant and real” (at [43]). It was submitted that the Tribunal’s error was in how it dealt with consequences that it, itself, had identified as “significant and real”.

82    It is trite that each case will turn upon its facts and a close examination of the Tribunal’s reasons is necessary. Nevertheless, some uncontroversial propositions may be drawn from these cases which are of present relevance. These propositions are not exhaustive and will depend on the facts. The first is that the level of engagement by the decision-maker with the representations made by an applicant “must occur within the bounds of rationality and reasonableness” and what that requires will depend on the nature, form and content of the representations: Plaintiff M1 at [25]. The second is that the Tribunal’s reasons must be read fairly and as a whole, such that the Court should be slow to conclude that the Tribunal has not considered a matter or exposed its reasoning simply because it is not dealt with in one part of its reasons where it is dealt with in others: see Stoneley and Da Costa Junior. Third, it will not necessarily be an error for the decision-maker to state or reason that the detention and removal of an unlawful non-citizen is an intended consequence of the statutory scheme if a decision is made to affirm the non-revocation of a cancellation decision, so long as the decision-maker’s reasons disclose that it has proceeded on a correct characterisation of s 501CA(4) and considered factors in favour of or against revocation or non-revocation. Fourth, the decision-maker does not err by deferring for consideration any representations made by an applicant as to non-refoulement or refusing to speculate as to the effects on detention and removal as a result of unknown permutations. Fifth, the decision-maker does not err in attributing weight, no weight or neutral weight to any particular consideration but as Lee J explained in Le such evaluations may be impugned where there is no rational basis for them as exposed in the reasons that are given by the decision-maker. The last proposition is to say no more than that the decision must nevertheless conform to the bounds of rationality and reasonableness.

83    In the present case, it may be accepted that the Tribunal made no finding as to the length of time for which the applicant would be detained and elected not to speculate about that matter. Nor did it speculate as to the outcome of any protection visa application that may be made by the applicant. It was entirely reasonable for the Tribunal to have taken this course. It may also be accepted that the Tribunal considered the impacts of the applicant’s removal from Australia including as to his ties to the Australian community, the best interests of the relevant children and the impact on his immediate family members. This too was an entirely reasonable and rational process of reasoning which disclosed that the Tribunal did not proceed on any myopic view as to the presumed intention of the Parliament.

84    It is also to be accepted that, unlike in Le, the Tribunal made no finding that the applicant’s detention would have “significant and real consequences”. Whilst the Tribunal here did not say that the consequences for the applicant would be significant, its reasons (read fairly and as a whole) point in that direction. That is because the Tribunal found that the applicant’s biological child and stepchild “would suffer some potentially detrimental impact should the applicant be returned to South Sudan” (TD [90]), the applicant had family members in Australia and had developed social links with Australian citizens and permanent residents that weighed in favour of revocation (TD [97]), and a non-revocation decision “would have a detrimental social and emotional impact on the applicant's minor stepchild and biological child, at the very least limiting their ability to develop a relationship with the applicant into the future” (TD [105]). Thus, although the Tribunal did not expressly state that the applicant’s continued detention and removal would have “significant and real consequences” for the applicant, it is evident that the Tribunal had reasoned on the basis that there would be practical and real consequences for the applicant and his immediate family.

85    Accepting all of these matters, the only reason the Tribunal gave for attributing “no weight” to the consideration relating to the legal consequences of the decision was that it was the intended purpose of the “statutory scheme”: TD [123]. At the risk of repetition, it is convenient to recall precisely what the Tribunal stated at TD [123]:

In circumstances where the applicant's removal and exclusion from Australia are intended purposes of the statutory scheme, and these purposes underlie the considerations in Direction 110, the tribunal gives this consideration no weight

86    Thus, as I have stated, the only reason given by the Tribunal to give no weight to the legal consequences of detention and removal was because this is what Parliament intended would happen if the non-revocation decision was affirmed. Even allowing for the factual differences between the cases, I agree with Lee J’s analysis in Le that this type of reasoning discloses an irrational circularity. As his Honour persuasively explained in Le, the effect of such reasoning is that the Tribunal has explained its conclusion by reference to a consideration which could not rationally perform the work assigned to it in that the legal consequences were treated as neutral because they were statutory consequences.

87    As in Le, the error here does not arise because the Tribunal failed to consider the legal consequences of a non-revocation decision or because it had misconstrued the Act, but because its reason for expressing that no weight was to be given to the consideration was because it was an intended purpose of the statutory scheme. The fact that the legal consequence of the non-revocation decision was that the applicant would remain in detention and was liable to be removed, and that such a consequence is contemplated by the Act, explained why those consequences arise. These explanations do not, without more, explain why those consequences carry no weight in the evaluative exercise required by s 501CA(4) of the Act and Direction 110. That is especially so where the Tribunal expressly stated that it was deferring consideration as to non-refoulment obligations and the outcome of any protection visa application made by the applicant. As Lee J stated in Le at [47], if the circumstance that the consequences are contemplated by the legislation were sufficient to deprive them of operative significance, “…the consideration would largely be emptied of substantive content”. Accordingly, I am satisfied that Ground 1(e) has been established.

88    The Minister accepted that if this Ground was established, it was material. That was an appropriate concession. It follows that the Tribunal’s Decision must be set aside.

5.    DISPOSITION

89    For the foregoing reasons, I am satisfied that Ground 1(e) has been established. It follows that there should be a writ of certiorari quashing the Tribunal Decision and a writ of mandamus remitting the applicant’s application for review to the Tribunal for determination according to law. I will also order that the Minister pay the applicant’s costs as assessed or agreed.

Associate:

Dated:    28 September 2026