Federal Court of Australia

Wano v Minister for Immigration and Citizenship [2026] FCA 1427

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application, as assessed or agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an application by Mr Jericho Wano for review of a decision of the Administrative Review Tribunal (Tribunal) to affirm the decision of a delegate of the Minister for Immigration and Citizenship (Minister) not to revoke the mandatory cancellation of his visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act): Wano and Minister for Immigration and Citizenship (Migration) [2026] ARTA 826 (15 May 2026) (T).

2    Mr Wano advances two grounds of review. Both contend that the Tribunal failed to take into account relevant considerations and therefore failed to comply with paragraph 8 of Direction 110, Visa Refusal and Cancellation Under s 501 and Revocation of a Mandatory Cancellation of a Visa Under s 501CA (Direction 110) and, consequently, s 499 of the Migration Act. In particular, he alleges that the Tribunal failed to take into account: (a) the circumstances of his participation in an opioid treatment program and the effect of that program on his risk of reoffending; and (b) his explanation for the short period of courtship between him and his wife before their marriage, namely their Islamic faith.

3    For the reasons which follow, the application should be dismissed. The applicant has not discharged his onus of proving, on the balance of probabilities, that the relevant matters were not considered by the Tribunal. The stronger inference arising from a fair reading of the reasons is that the matters were considered but regarded as unpersuasive.

Background

4    The applicant is 25 years old. He was born in New Zealand and remains a citizen of that country.

5    In January 2005, at the age of four, he relocated to Australia with his family. Since then, he has resided here on a Class TY Subclass 444 Special Category (Temporary) visa.

6    Between 2020 and 2023, he was convicted of several criminal offences:

(1)    On 28 August 2020, he was convicted for the offence of obstructing police officer (on 25 July 2020), for which he was fined $800.

(2)    On 21 October 2022, he was convicted for the offences of enter dwelling with intent at night whilst armed in company (on 4 July 2020) and extortion – demand with intent to gain benefit with threat of detriment (on 4 July 2020). He was sentenced to three years imprisonment for the former offence, and 18 months imprisonment for the latter, to be served concurrently.

(3)    On 16 June 2023, he was convicted for the offences of obstruct police officer (on 17 May 2020), unlawful use of motor vehicles aircraft of vessels – use (on 3 July 2020), breach of bail condition (on 13 October 2021), breach of bail condition (on 10 February 2022), and dangerous operation of a vehicle (on 17 May 2020). He was sentenced to 12 months concurrent imprisonment for the last offence.

(4)    On 15 December 2023, he was convicted for the offences of extortion – demand with intent to gain benefit with threat of detriment (on 29 December 2022) and without reasonable excuse, by use of weapon engage in conduct, alone or with another, likely to cause alarm to another person (on 25 March 2019). For the former offence, he was sentenced to three years imprisonment, and for the latter, he was sentenced to 12 months imprisonment.

7    On 6 April 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act, on the basis that he had a “substantial criminal record”: see Migration Act s 501(6)(a) and (7)(b).

8    On 29 April 2023, he made representations to the Minister to have the cancellation revoked under s 501CA of the Migration Act.

9    On 20 February 2026, a delegate of the Minister found that the power under s 501CA(4) of the Act to revoke the cancellation had not been enlivened.

10    On 24 February 2026, the applicant applied for review of the delegate’s decision in the Tribunal. The matter was heard on 29 April and 8 May 2026, and the Tribunal decided to affirm the decision on 15 May 2026.

The Tribunal’s decision

11    The issues for the Tribunal’s determination were, firstly, whether the applicant satisfied the character test, and second, if not, whether there was another reason why the mandatory cancellation of his visa should be revoked: T [20].

12    As to the first question, the Tribunal observed, rightly, that s 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if the person does not pass the character test, which is defined in s 501(6): T [21] – [22]. Relevantly, the Tribunal also noted that, under s 501(7)(c), a person is taken to have a “substantial criminal record” (for the purposes of s 501(6)(a)) and will not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more: T [22]. It concluded that, by reason of his sentences of imprisonment of 12 months or more, the applicant had a substantial criminal record and thus did not pass the character test: T [30] – [31].

13    As to the second question, the Tribunal noted that, if the person does not pass the character test, the Tribunal must consider whether there is another reason to revoke the cancellation of the visa: T [23]. It observed that such an assessment necessitated taking into account the primary and other considerations set out in Direction 110: T [24] – [29].

14    The first primary consideration is protection of the Australian community from criminal or other serious conduct. That involves two sub-considerations: the nature and seriousness of the applicant’s conduct to date, and the likelihood of his engagement in further criminal or other serious conduct: Direction 110 [8.1]. As to the first point, the Tribunal characterised the applicant’s conduct as “very serious”, because he had been convicted of offences involving actual or threatened violence, he was sentenced to numerous terms of imprisonment, his offending was frequent and increased in seriousness, his offending had a significant cumulative effect, and he reoffended only two months after being sentenced for a prior matter: T [33]. Accordingly, it considered the applicant’s history of offending to be a “very significant factor” in relation to the question whether to revoke the mandatory cancellation of his visa: T [66].

15    The Tribunal also considered that there was a moderate risk of the applicant engaging in further violent offending, which presented an unacceptable risk to the Australian community: T [88]. In that regard, it rejected his claims to be a changed person motivated to stay clean and be a productive member of society: T [77]. That was for five reasons:

(1)    Firstly, despite being told by Barlow DCJ in sentencing remarks on 21 October 2022 that “you have a low prospect of committing further offences provided you keep off the drugs”, he failed to do so and re-offended two months later: T [78] – [79].

(2)    Second, he repeatedly sought to deny or minimise his past offending: T [81].

(3)    Third, he used pharmaceutical medication without a script, consumed alcohol and engaged in violent altercations whilst in custody: T [82].

(4)    Fourth, the Tribunal was not satisfied with his attempts to rehabilitate:

[83]    Fourthly, whilst I acknowledge that the Applicant has now completed a range of behavioural courses and programs directed towards his rehabilitation, I remain concerned about the timing of these courses being started and the very limited learning and insight that the Applicant seems to have gained from them. He has a history of declining to engage with support services, including offers of housing and rehabilitation offered to him by his parents. In terms of why the Applicant did start behavioural courses and treatment in 2025, his explanation, to the effect of that he was finally ready for change, carried very little force or persuasion. It remains unclear why his prior incarceration was an insufficient motivating factor to stop socialising with anti-social influences or why he was not ready or willing to engage with support services made available to him in the past. For the avoidance of any doubt, and for the reasons given further below, I do not accept that his very recent relationship with ED and her two children has been a genuine catalyst for change. Despite seeking to place much weight on the recent courses he has completed, the Applicant was also unable to provide much detail about what he had learnt and how it could be applied to his circumstances in the future. Whilst he claimed to have learnt about coping techniques, for example, his evidence about them remained extremely vague and generalised.

(5)    Fifth, the Tribunal was not persuaded that his family would have a normalising effect upon his behaviour if he were released into the community: T [84]. In particular, it was concerned by the circumstances of his relationship with his wife (who was given the pseudonym “ED”) and the veracity of her evidence:

[85]    Nor do I place much weight upon the Applicant’s claimed relationship with ED and her two children. I am very concerned by the circumstances surrounding the Applicant’s relationship with ED. Their first contact with each other was via social media in or around August 2025, and it was followed very rapidly by their marriage in December 2025. I am also very concerned by ED’s evidence. When pressed to explain on what basis she was saying that the Applicant was not the same young man who once made poor decisions, she could offer no real explanation or reasons for saying so. Her oral evidence made clear that she had not discussed the Applicant’s criminal offending with him in any meaningful way, and she said that her knowledge of his criminal offending was limited to what she had read in the Tribunal’s hearing book for this proceeding. Even then, she claimed to have only briefly read the documents. When asked what she had gleaned about the Applicant’s criminal conduct from the material that she had read, the only example she could give related to the Applicant abusing a police officer. I was struck by her lack of knowledge, insight or understanding in relation to the Applicant’s criminal offending and other conduct. Overall, the evidence regarding the Applicant’s relationship with ED lacks any type of detail, force or persuasion.

[86]    In terms of the Applicant’s future plans if released into the Australian community, it has been claimed that he will live with ED and her children and take up employment with her brother. He may also seek to start a business with ED at some future point in time. Noting the strength of my concerns regarding ED’s credibility as a witness, taken together with the fact that the Applicant and ED have never co-habited and experienced the stressors of living together as a family unit, the Applicant intends to live with ED in a different state to his immediate family, he will be living in a new area with no established social support networks, and he has not held regular or full-time employment in the past, I lack any confidence that these circumstances, either individually or cumulatively, would be conducive to the Applicant’s rehabilitation or would have a positive influence upon his risk of further offending.

16    In that assessment, the Tribunal also expressly acknowledged the applicant’s Islamic faith, which was said to be important to him. However, the weight given to that was tempered by his serious criminal offending: T [87].

17    Accordingly, on the first primary consideration, the Tribunal concluded that the protection of the Australian community weighed “very heavily against” the revocation of the mandatory cancellation of the applicant’s visa: T [89].

18    The remaining primary and other considerations are not directly relevant to the issues raised on this application. The Tribunal’s reasons in respect of those may be summarised as follows.

19    The second primary consideration concerns family violence committed by the non-citizen: Direction 110 [8.2]. It was given neutral weight, as there was no evidence of any family violence committed by the applicant: T [92].

20    The third primary consideration concerns the strength, nature and duration of the applicant’s ties to Australia: Direction 110 [8.3]. By reason of his time spent in Australia, the fact that his parents, siblings and extended family reside here, and his relationship with his wife and her two children, this factor was found to weigh moderately in favour of revocation: T [108].

21    The fourth primary consideration concerns the best interests of minor children in Australia affected by the decision: Direction 110 [8.4]. The Tribunal acknowledged that a non-revocation decision would have an adverse impact upon the applicant’s two siblings, niece, nephew, 20 cousins and two stepchildren (ED’s children), with the degree of impact decreasing in that order: T [110] – [116]. It ultimately considered that the best interests of each minor child weighed in favour of revocation, though only to a moderate degree: T [117].

22    The fifth primary consideration concerns the expectations of the Australian community, particularly the expectation that where a non-citizen engages in serious conduct, or poses an unacceptable risk of doing so, they will not be permitted to remain in Australia: Direction 110 [8.5]. This was found to weigh heavily in favour of non-revocation: T [121].

23    As to the other considerations in paragraph 9 of Direction 110, the Tribunal considered that these provided limited support for a revocation decision: T [122] – [141].

24    Ultimately, the Tribunal concluded that “the primary considerations of the protection and expectation of the Australian community strongly outweigh the countervailing considerations”, and as such, it was satisfied that there was no other reason to revoke the mandatory cancellation: T [146]. On that basis, it affirmed the delegate’s decision: T [147].

The grounds of review

25    The applicant seeks review of the Tribunal’s decision on two bases, both of which allege a failure to take into account a relevant consideration. Firstly, he contends that, in assessing his risk of reoffending, the Tribunal failed to take into account: (a) the effect of his participation in an opioid substitution treatment (OST) program upon that risk; and (b) his evidence that there was some delay between his applying for and commencing the OST and other mental health programs. Second, he submits that the Tribunal failed to consider his and his wife’s Islamic faith when assessing the legitimacy of their relationship by reference to the timing of their marriage.

Relevant principles

26    A decision maker will err if they fail to “bring an active intellectual process” to a consideration made relevant by the statute that grants the power: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [46] (Carrascalao); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 – 40. However, such a finding “will not lightly be made”: Carrascalao 364 [48]. The judicial review applicant bears the onus of proving, on the balance of probabilities, that the relevant matter was not considered: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, 45 [38] (BVD17).

27    A finding of this nature necessarily involves the drawing of an inference from the decision maker’s reasons. When determining the availability of such an inference, the Court must have regard to two “settled principles”: firstly, that a statement of reasons must be read fairly and not in an unduly critical manner; and second, that it must be read in light of the content of the statutory obligation pursuant to which it was prepared: BVD17 45 [38].

28    Consistently with those principles, it is well established that the mere fact that a particular matter was not mentioned in a statement of reasons does not necessarily mean that it was not considered: ETA067 v Republic of Nauru (2018) 92 ALJR 1003, 1006 [13]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 605 – 606 [31]; Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461, 474 [49]. Likewise, it is also well established that a decision maker is not obliged “to articulate the minutiae of his consideration or his weighing processes”: Pallas v Minister for Home Affairs [2019] FCAFC 149 [45]. Rather, the fact that a decision maker did not make a particular finding of fact invites an inference that he or she considered it not to be material, or of any persuasive or significant weight: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [68] – [69]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, 75 [33] – [34].

Ground 1: The rehabilitation programs

29    By virtue of s 499 of the Migration Act, paragraph 8.1.2(2) of Direction 110 required the Tribunal to have regard to a number of matters when assessing the risk posed by the applicant to the Australian community. Relevantly, that included the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of reoffending and evidence of rehabilitation achieved by the time of the decision.

30    The applicant gave evidence before the Tribunal that he had undergone, and was undergoing, a series of programs in respect of his drug addiction and mental health. For his drug addiction, he deposed that, since March 2025, he had been undergoing OST, which involved him receiving injections of opioid substitution medication every three weeks. He said that this treatment reduced his withdrawal symptoms, and that he planned to eventually lower his dosage and become fully sober. In cross-examination, he gave evidence that the OST program assisted with his drug withdrawals generally, notwithstanding that he had been primarily addicted to methamphetamine.

31    For his mental health, the applicant’s evidence was that he had begun professional treatment for a number of mental health conditions whilst in detention, which had assisted him to understand the reasons for his past behaviour, by which he “always tried to be cool” and acted as “this big, tough guy” to gain the respect of others. This evidence was corroborated by various certificates for courses which he had completed whilst in custody. The first certificate, for a course entitled “Changing Habits”, was issued on 19 June 2025.

32    At the Tribunal hearing, the applicant was cross-examined as to the circumstances of these programs. In particular, he was questioned about his reasons for participating in them despite refusing previous opportunities for rehabilitation whilst incarcerated. In response, the applicant’s evidence was that “you can’t just apply for something and start straight away”, and he had to wait for some time before getting “medication”, being the OST program.

33    It is noteworthy that neither the OST program nor the mental health courses were referenced in the applicant’s statement of facts, issues and contentions, and did not form part of his primary case for revocation. Rather, they emerged from his cross-examination by the solicitor for the Minister.

34    Nevertheless, the applicant asserts that the Tribunal failed to consider:

(a)    the effect of the OST program on his risk of reoffending, or alternatively failed to consider the effect of the OST program on his risk of reoffending at the time of its decision; and

(b)    the dates on which he had first applied to participate in the OST and mental health programs and his evidence of the time it took in jail for those services to be delivered.

Failure to consider the effect of the OST program

35    The first aspect of submission (a) must be rejected, because the Tribunal’s reasons sufficiently demonstrate that it considered the OST and mental health programs in the course of assessing the applicant’s risk of reoffending.

36    So much is apparent from T [73(c)], which appears in the section in which the Tribunal considered the applicant’s risk of reoffending:

[73]    As noted above, the Applicant has expressed remorse for his actions and he has apologised to his victims. His evidence includes that:

    …

(c)     He has used his time in detention productively, has focused on improving himself mentally and physically and has committed himself to completing programs and courses aimed at supporting his rehabilitation, personal development and future wellbeing. He has completed courses in Depression Management, Anger Management Techniques, Understanding Drug and Alcohol Abuse, Creating a Positive Work Environment, How to Improve Your Concentration, Understanding Drug and Alcohol Abuse, Psychology 101, Creating a Positive Work Environment and Healing Affirmations. He is also on an opioid substitute treatment program and receives injections every three weeks.

(Emphasis added).

37    Then, at paragraph 83 (extracted in full at supra [15(4)]), the Tribunal relevantly concluded that:

… whilst I acknowledge that the Applicant has now completed a range of behavioural courses and programs directed towards his rehabilitation, I remain concerned about the timing of these courses being started and the very limited learning and insight that the Applicant seems to have gained from them. He has a history of declining to engage with support services, including offers of housing and rehabilitation offered to him by his parents. In terms of why the Applicant did start behavioural courses and treatment in 2025, his explanation, to the effect of that he was finally ready for change, carried very little force or persuasion. It remains unclear why his prior incarceration was an insufficient motivating factor to stop socialising with anti-social influences or why he was not ready or willing to engage with support services made available to him in the past.

38    Then, at paragraph 88, the Tribunal concluded:

[88]     Considered as a whole, I find that there is moderate risk of further violent reoffending which presents an unacceptable risk to the Australian community.

39    These paragraphs sufficiently show that the Tribunal did, in fact, take the OST program into account when assessing the applicant’s risk of reoffending. Though the Minister correctly accepted that the reference in the first sentence of T [83] to the applicant’s completed “courses and programs” was directed only to the mental health programs, it does not follow that the OST program was overlooked. It was explicitly identified at T [73(c)], and the Tribunal’s ultimate assessment at T [88] was expressed as being based upon the evidence “as a whole”. Read fairly, and not with an eye attuned to error, the reasons do not support the inference that the OST program was not considered: BVD17 45 [38]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. Nor was the Tribunal required to articulate the minutiae of its consideration or make express findings about every aspect of the evidence. At most, the absence of a specific reference to the OST program in T [83] suggests that the Tribunal did not regard it as materially affecting its assessment, particularly given the program was expressly acknowledged elsewhere in the analysis. It does not establish, on the balance of probabilities, that the program was not considered.

40    Alternatively, the applicant also submits that the Tribunal failed to consider the effect of the OST program on his risk of reoffending at the time of its decision. In this regard, he calls in aid his evidence before the Tribunal that he had ceased using drugs by reason of the OST program. He contends that this evidence was not considered, because if it were, in light of the Tribunal’s acknowledgment of Barlow DCJ’s sentencing remarks to the effect that he had a low prospect of reoffending provided he ceased using drugs (see supra [15(1)]), it would have concluded that his risk of reoffending was not moderate, but low. This submission can be rejected for two reasons.

41    Firstly, there is nothing in the Tribunal’s reasons which supports an inference that it did not consider the applicant’s evidence that he had ceased using drugs. To the contrary, such an inference is unlikely, because the Tribunal: (1) made no finding that the applicant continued to use drugs; (2) expressly referenced the OST program at T [73(c)]; and (3) when describing its concerns with the applicant’s behaviour whilst in custody (at T [82]), referred only to his use of pharmaceutical medication without a script, consumption of alcohol and involvement in violent altercations. Those circumstantial matters render it impossible to conclude, on the balance of probabilities, that the Tribunal did not take into account the applicant’s evidence that he had ceased using drugs.

42    Second, the applicant’s submission overstates the Tribunal’s reference at T [78] to the sentencing remarks of Barlow DCJ. The purpose of that reference was to illustrate that, notwithstanding his Honour’s warning, the applicant went on to reoffend only two months later. There is nothing in the Tribunal’s reasons which suggests that it endorsed the suggestion that the applicant would have a low prospect of reoffending if he ceased his drug use. To the contrary, T [83] demonstrates that its concerns were directed to the applicant’s underlying rationale for engaging in the rehabilitative programs in which it accepted that he had taken part. It follows that there was no reason for the Tribunal to make any express finding as to whether the applicant had ceased his drug use. To the contrary, on the face of T [83], it is apparent that it considered that fact alone to be unpersuasive against its concerns as to the timing of the rehabilitative steps, his previous refusals of support services offered to him whilst in incarceration, and the lack of clarity as to his newfound motivation for rehabilitation. It is on that basis that it ultimately concluded that it was not persuaded by his claims to be a changed person motivated to stay clean and be a productive member of society: T [77].

43    Therefore, nothing in T [83], nor the Tribunal’s reasons as a whole, justifies a finding, on the balance of probabilities, that the Tribunal failed to take into account the applicant’s evidence that he had ceased using drugs by reason of the OST program.

Failure to consider the time between applying for and obtaining rehabilitative programs

44    The applicant also submits that the Tribunal did not have regard to the reasons which he gave for commencing the OST and mental health programs in 2025, namely that he had been made to wait by the prison.

45    That evidence was given orally by the applicant at the hearing before the Tribunal, which appears in the transcript as follows:

In jail when you apply for a course, especially that (indistinct) one, it takes up to a year to be put on a list. So that (indistinct) course I applied for was at least a year before that. And yes, jail you can’t just apply for something and start straight away. They make you wait. And that goes for medication, everything, I even applied for this medication two, two and half years ago. Like, yes. It just – it takes time in jail. Yes.

46    In context, the “course” was a mental health course entitled “Changing habits”, and the “medication” was the OST program. Moreover, given the Tribunal hearing took place in April 2026, the reference to “two and a half years ago” can be understood as an assertion that the applicant applied for the program in late 2023 or early 2024.

47    The applicant submits that this evidence was not considered by the Tribunal. He invites the Court to draw an inference to that effect on the basis of the third sentence of T [83], which reads:

In terms of why the Applicant did start behavioural courses and treatment in 2025, his explanation, to the effect of that he was finally ready for change, carried very little force or persuasion. It remains unclear why his prior incarceration was an insufficient motivating factor to stop socialising with anti-social influences or why he was not ready or willing to engage with support services made available to him in the past.

(Emphasis added).

48    He submits that, because the Tribunal’s description of his explanation did not include his evidence concerning the delay in being admitted to the rehabilitative programs, it should be inferred that that evidence was not taken into account.

49    This submission should be rejected. As a starting point, whilst the explanation was not expressly referenced by the Tribunal in T [83], it does not follow that it was not considered (see supra [28]). Importantly, it must be borne in mind that the explanation consisted of no more than bare assertion, unsupported by any contemporaneous material. In those circumstances, it is at least equally open to infer that the Tribunal simply regarded it as unpersuasive or, at the very least, less persuasive than the explanation identified in its reasons, namely that the applicant was “finally ready for change”. Accordingly, in the absence of any other evidence, it is not possible to conclude, on the balance of probabilities, that the explanation was not taken into account. The applicant has not discharged his onus in that respect.

50    Further, and in any event, any omission was not material to the Tribunal’s decision. On a fair reading of T [83], it is clear that the Tribunal was concerned not merely with the timing of the applicant’s engagement in the rehabilitative programs, but also with his reasons for doing so, in circumstances where he had previously refused support and opportunities for rehabilitation whilst incarcerated. Whilst the applicant’s proffered explanation may have answered one aspect of these concerns, namely why he did not commence the programs until 2025, it would not have addressed the broader concerns as to his motivation for doing so. As T [83] makes clear, those concerns formed a substantial basis on which the Tribunal concluded that it was not satisfied with his attempts to rehabilitate. As such, there is no realistic possibility that consideration of the applicant’s evidence concerning the passage of time between his applying for and participating in the rehabilitative programs could have resulted in a different finding as to the applicant’s rehabilitation and, in turn, his propensity to reoffend: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, 327 [7] (LPDT).

Conclusion on ground 1

51    Ultimately, the contentions raised in respect of the first ground do little more than cavil with the weight given to the OST and mental health programs in the Tribunal’s assessment of the applicant’s propensity to reoffend. That is not an actionable basis for judicial review. The ground should, therefore, be dismissed.

52    The foregoing conclusion renders it unnecessary to consider whether the Tribunal was required to take matters into account which were not positively advanced by the applicant as part of his case for revocation. That being so, it is not necessary to address the boundaries of the principles set out in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 – 511 [18].

Ground 2: The applicant’s Islamic faith

53    The second ground is that the Tribunal failed to take into account the Islamic faith of Mr Wano and his wife when assessing the legitimacy of their relationship by reference to the timing of their marriage.

54    This submission takes particular issue with the Tribunal’s findings at T [85] – [86], which are extracted above at [15(5)]. In particular, the applicant contests the conclusion that his personal circumstances would not be conducive to his rehabilitation or have a positive influence upon his risk of reoffending. In reaching that conclusion, the Tribunal expressed that it was “very concerned” by the circumstances surrounding the applicant’s relationship with his wife, including that their first contact “was followed very rapidly by their marriage”, and ultimately found that “the evidence regarding the Applicant’s relationship with [his wife] lacks any type of detail, force or persuasion”: T [85].

55    The relevant background to this submission is that Mr Wano met his wife over social media in August 2025, whilst he was in immigration detention. They were apparently aware of each other prior to that time through mutual friends. Soon thereafter, in December 2025, the pair were married. Before the Tribunal, when questioned on the circumstances of his marriage, the applicant gave the following evidence:

Yes, so I posted a photo, she liked it, obviously social media that’s how it is. You see – you know, if you’re interested – I guess that’s why it’s called social media. Then I messaged her and we started talking every day, or every hour, and then she said, “I’ll come see you” about a month later, two months later. And in our religion, you can’t be boyfriend girlfriend, you know, it’s a sin, and you can’t talk to each other like that. So when I said I love her, then you marry. Yes. You know, that was it.

56    The applicant submits that the Tribunal failed to take this evidence into account as a rational justification for the couple’s short period of courtship, when assessing the legitimacy of the relationship for the purpose of evaluating his risk of reoffending. That should be rejected for the following reasons.

57    Firstly, at risk of repetition, the mere fact that the evidence was not expressly referred to in the reasons is not, of itself, a basis for a finding that it was not considered. Indeed, the Tribunal’s reasons are not inconsistent with the evidence having been considered. At the end of T [85], the Tribunal concluded that “Overall, the evidence regarding the Applicant’s relationship with ED lacks any type of detail, force or persuasion”. That could reasonably be understood as a reference to the totality of the evidence on the matter of the applicant’s marriage, which necessarily includes the evidence in question. Such an inference finds support in the express acknowledgments by the Tribunal at T [87] and [101] of the couple’s Islamic faith. That provides a sufficient basis on which to conclude that the Tribunal considered the evidence but ultimately regarded it as unpersuasive, thereby explaining its omission from the reasons. Accordingly, it cannot be concluded, on the balance of probabilities, that the relevant evidence was not taken into account, which is fatal to the ground of review.

58    Second, and in any event, any failure by the Tribunal to consider the evidence in question was not material. As T [85] and [86] make clear, the Tribunal’s concerns with the applicant’s relationship were not limited to the short period of courtship. Indeed, on a plain reading of those paragraphs, that appears to have been a relatively minor concern. For example, the Tribunal took greater issue with the veracity of the evidence given by the applicant’s wife, expressing that it “was struck by her lack of knowledge, insight or understanding in relation to the Applicant’s criminal offending and other conduct”. These concerns were summarised by the Tribunal in the concluding sentence of T [86]:

Noting the strength of my concerns regarding ED’s credibility as a witness, taken together with the fact that the Applicant and ED have never co-habited and experienced the stressors of living together as a family unit, the Applicant intends to live with ED in a different state to his immediate family, he will be living in a new area with no established social support networks, and he has not held regular or full-time employment in the past, I lack any confidence that these circumstances, either individually or cumulatively, would be conducive to the Applicant’s rehabilitation or would have a positive influence upon his risk of further offending.

59    The short period of courtship was not included among the matters identified in that concluding synthesis. Moreover, none of the concerns actually identified – including those relating to the wife’s credibility, the fact that the couple had never cohabited, the applicant’s proposed separation from his immediate family, the absence of established social support networks, and his limited employment history – could have been answered by his evidence that their faith required them to marry quickly. That being so, there is no basis upon which to conclude that there is a realistic possibility that the Tribunal could have reached a different conclusion as to the applicant’s risk of reoffending had it considered the evidence of his faith: LPDT 327 [7]. Therefore, even if the Tribunal failed to consider the evidence in question, it was immaterial to its finding that the applicant’s relationship with his wife would not have a positive influence on his propensity to reoffend.

60    Accordingly, ground 2 should be dismissed. As such, it is not necessary nor appropriate to determine whether the applicant’s evidence accurately described the requirements of his faith.

Conclusion

61    For the foregoing reasons, the application should be dismissed. Both grounds of review ultimately fail to meet the high threshold for establishing that the Tribunal committed a jurisdictional error by not taking into account a relevant consideration.

62    There is no reason why the Minister should not have his costs of the application. Accordingly, it is appropriate to order that the applicant pay the first respondent’s costs on the standard basis, as assessed or agreed.

Associate:    

Dated:    2 October 2026