Federal Court of Australia

AVG26 v Minister for Immigration and Citizenship [2026] FCA 1457

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the second respondent dated 16 January 2026 in matter 2025/5894.

2.    A writ of mandamus issue directing the second respondent to determine the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs of the proceeding.

4.    The applicant and the first respondent are to confer in relation to fixing costs in a lump sum and if agreement is reached, consent orders are to be submitted to the Chambers of the Hon Justice Wheelahan by 4.00 pm on 19 October 2026.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant is a citizen of the Islamic Republic of Iran. The applicant seeks judicial review of a decision of the Administrative Review Tribunal which affirmed a decision of a delegate of the Minister to refuse his application for a protection visa on character grounds. The decision of the delegate was a decision under s 501 of the Migration Act 1958 (Cth) that was reviewable by the Tribunal under s 500 of the Act. In turn, this Court has jurisdiction under s 476A(1)(b) of the Act in relation to the Tribunal’s decision on review.

Background

2    The Tribunal’s statement of reasons has been published: VSYV and Minister for Immigration and Citizenship (Migration) [2026] ARTA 62 (16 January 2026) (T). The background is set out in the Tribunal’s reasons at T [5] to [10]. Relevant to this application for judicial review –

(a)    the applicant first arrived in Australia in 2012 on a study visa;

(b)    in November 2015 the applicant applied for a protection visa;

(c)    there is a protection finding in the applicant’s favour that was made by the Administrative Appeals Tribunal on 17 June 2024;

(d)    the applicant did not pass the character test because he had criminal convictions, including convictions for which in late 2023 he was sentenced to a term of two years’ imprisonment;

(e)    on 29 October 2025, a delegate of the Minister refused the applicant’s application for a protection visa; and

(f)    on 16 January 2026, the Tribunal affirmed the delegate’s decision, exercising the discretion under s 501 of the Migration Act to refuse to grant a visa to the applicant in circumstances where he did not pass the character test.

The Tribunal’s statement of reasons

3    The Tribunal’s reasons generally addressed the framework of Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No 110) which was applicable to the review.

Primary consideration 8.1 – protection of the Australian community from criminal or other serious conduct

4    As to the nature and seriousness of the applicant’s conduct, the Tribunal held at T [67] that the applicant’s crimes and other misconduct reflected a concerning disregard for Australian laws, the rights of others, and custodial rules and that the totality of his conduct was very serious. There were two aspects of the applicant’s history of offending considered by the Tribunal that are relevant to the grounds of judicial review that he advances.

5    The first aspect was a history of driving offences, including speeding and driving without a licence. The Tribunal found at T [59] that some of that conduct, such as exceeding speed limits of 100 to 110 kph, had “the potential to cause death, serious injury, and/or financial harm to other road users or pedestrians”, that driving an unregistered vehicle while unlicensed also had the potential to cause financial harm, and that the applicant’s driving conduct was “collectively serious”.

6    The second aspect was the applicant’s arson-related offending. The Tribunal described attempted arson as “undoubtedly a very serious, dangerous, and violent crime, irrespective of the property damage caused”. It noted at T [53] that the applicant had thrown a lit Molotov cocktail at the home of a former partner, who lived alone, in the early hours of the morning. The Tribunal said that uncontrolled fire “has the potential to cause death, serious physical or psychological injury, or financial harm and disruption”. It found that the offence was family violence within the meaning of the Direction. It did not accept the applicant’s claim that no one was injured, stating at T [61] that injury could be more than physical, and the victim’s suffering was apparent from her statement to police and from the sentencing remarks.

7    As to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal’s findings were detailed. The Tribunal found at T [84] that the applicant’s recidivism risk was moderate and unacceptable. At T [85] the Tribunal concluded that when the very serious nature of the applicant’s crimes and other conduct was coupled with an unacceptable risk of reoffending, which may cause very serious harm if repeated, this primary consideration weighed substantially against exercising the discretion in s 501(1) in the applicant’s favour.

Primary consideration 8.2 – whether the conduct engaged in constituted family violence

8    The material before the Tribunal evidenced a history of family violence. That history included several family violence intervention orders against the applicant in the period between 2015 and December 2023, the incident of attempted arson by the applicant involving his former partner’s dwelling by throwing a Molotov cocktail at her front door for which he was convicted and imprisoned, and the placement of tracking devices on the car of another former female partner without her consent. The Tribunal held at T [96] that the primary consideration of whether the conduct engaged in by the applicant constituted family violence weighed substantially against exercising the discretion in s 501(1) of the Act in the applicant’s favour.

Primary consideration 8.3 – the strength, nature and duration of ties to Australia

9    The applicant claimed that he was in a de facto relationship with a Ms DD and that she and her two children relied on him for support. The Tribunal placed little weight on this claim because it was inconsistent with a statement in an earlier Tribunal decision in 2024 that the applicant had no current partner, and there was no statement from Ms DD before the Tribunal, or any evidence from the children or the children’s biological father: T [98](a)–(b). The Tribunal gave some weight to the applicant’s claim that he had undertaken some study and work in Australia, although the claim was largely uncorroborated by academic or employment records: T [98](c). The Tribunal placed little weight on other claims by the applicant of prosocial ties with supportive friends and others stating that there was no evidence from purported beneficiaries of the applicant’s training, mentoring or volunteering: T [99](d).

10    The Tribunal concluded at T [100] that the applicant had very limited ties to Australia despite living here for over a decade. It accepted that an adverse visa decision had the potential to cause emotional impacts on some people to whom he may be close but stated that the paucity of evidence was such that any negative effect was unlikely to rise higher than sadness or disappointment. The Tribunal considered that on balance this primary consideration weighed no more than slightly against exercising the discretion under s 501(1) to refuse the visa.

Primary consideration 8.4 – the best interests of minor children in Australia

11    The Tribunal made no finding that the applicant had any biological children. The Tribunal referred to inconsistencies in the material as to the extent to which the applicant had any relationship with the children of Ms DD, any dependence they may have on him, whether the older child of Ms DD was now an adult, and the impact of the decision in the matter: T [102]–[103]. At T [104] the Tribunal alluded to other evidence that there remained intervention orders in place against the applicant and stated that it was not known whether those orders related to Ms DD or her children.

12    The Tribunal concluded at T [105] that the applicant’s inconsistent evidence about this primary consideration was unsatisfactory and that the primary consideration carried only slight weight against exercising the discretion to refuse the visa.

Primary consideration 8.5 – expectations of the Australian community

13    The Tribunal referred to the expectations of the Australian community provided for in paragraph 8.5 of Direction No 110 and to relevant authority on the application of the expectations set out in the Direction, namely Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 at [52] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ). The norm expressed in paragraph 8.5(1) is that “[w]here a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”.

14    The Tribunal had regard to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ) which held that detention of unlawful non-citizens is unlawful when there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future. The Tribunal stated at T [114] that NZYQ casts a different light on the norm expressed at clause 8.5(1). The Tribunal noted that because the applicant was the subject of a protection finding, he could not be removed to Iran. However, the Tribunal stated that the different context now placed on primary consideration 8.5 after NZYQ did not disturb the deemed community expectation arising from the applicant’s conduct. The Tribunal concluded at T [116] that the expectations of the Australian community weighed substantially in favour of exercising the discretion under s 501(1) of the Act to refuse the visa.

Other consideration 9.1 – the legal consequences of the decision

15    The Tribunal considered the legal consequences of a decision to refuse a visa, and at T [121] referred to extensive submissions that had been made to the Tribunal on the applicant’s behalf. The submissions identified a range of potential legal consequences and the practical implications of those consequences, namely immediate psychological and health effects arising from those legal consequences, causing fear, loss of autonomy and dignity, and insecurity. The Tribunal set out the submissions at T [121]. In summary, the potential legal consequences that were advanced in submissions to the Tribunal included –

(a)    detention;

(b)    the grant of a Bridging R visa (BVR);

(c)    the imposition of conditions on a BVR such as reporting requirements and facilitating his own removal from Australia which themselves were submitted to have practical consequences for the applicant;

(d)    removal to Iran, Nauru (now known as the Republic of Naoero), or an unknown third country; and

(e)    that the applicant would be liable to “constructive refoulement”.

16    Detailed submissions on behalf of the applicant were made to the Tribunal in relation to claimed adverse practical consequences for the applicant and his health should he be removed to Naoero. The submission that the applicant would be liable to “constructive refoulement” was developed by contending that the applicant might suffer so much hardship in Naoero if removed there, and that there was a real risk that in those circumstances the applicant would make a request to be returned to Iran.

17    The Minister submitted to the Tribunal that –

(a)    the applicant was liable to be removed as soon as reasonably practicable;

(b)    the Minister had applied for a Nauruan Long Stay Visa (as it was then known) on the applicant’s behalf which remained pending;

(c)    continued detention of the applicant was authorised for the purpose of removal to Naoero;

(d)    if the applicant was removed to Naoero, practical hardship would result because of his unfamiliarity with that country and absence of familial and other support which would be amplified because of his ADHD and PTSD diagnoses; and

(e)    the Tribunal did not need to consider the prospect of constructive refoulement as this was not a direct and immediate legal consequence of its decision.

18    At T [123], the Tribunal stepped through potential legal consequences. In summary, the Tribunal stated that as a result of the protection finding, the Act did not authorise removal of the applicant to Iran. The Tribunal then addressed the possible legal consequences of setting aside the delegate’s decision as being remittal of the decision for further consideration, and intervention by the Minister including by way of judicial review, or the exercise of personal powers under the Act. The Tribunal stated that there was no evidence that any of these possibilities was in prospect, and that they were not immediate consequences of the Tribunal’s decision.

19    The Tribunal then identified the consequences of affirming the delegate’s decision as including –

(a)    the applicant could seek judicial review;

(b)    removal to Naoero was a reasonably foreseeable consequence, although this was uncertain pending consideration of the visa application by the Naoeroan government;

(c)    detention for a period while any application for judicial review was on foot, or pending the foreseeable removal of the applicant to Naoero;

(d)    if removal to Naoero did not occur because the Naoeroan government did not issue a visa to the applicant, then the executive government might permit the applicant to reside in Australia under a BVR with conditions attached;

(e)    the conditions that would attach to a BVR remained uncertain, although they could be restrictive, have a compliance burden, and prosecution was possible if they were breached;

(f)    the terms of s 199E of the Act required the holder of a BVR to comply with a removal pathway direction which could include removal to a third country depending on government-to-government negotiations;

(g)    however, the Tribunal considered that compliance with a removal pathway direction requiring removal to a third country was not a direct or immediate consequence of the Tribunal’s decision; and

(h)    in relation to the claim which the applicant identified as “constructive refoulement”, there was no evidence that the applicant would, at some future point, request voluntary removal to Iran and that it seemed unlikely given the applicant’s circumstances and it was therefore not a direct or immediate consequence of the Tribunal’s decision.

20    The Tribunal stated at T [124] that much of what might occur to the applicant turned on the “irresoluble course of future events”. The Tribunal stated that what might occur was not a direct or immediate consequence of the Tribunal’s decision, citing BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [101] (Perry J, Bromwich and Kennett JJ agreeing) (BNGP). However, the Tribunal stated that irrespective of how the applicant’s future may unfold, it accepted that an adverse decision would be distressing for the applicant and others to whom he may be close, and that this had the potential to affect his mental health adversely.

21    The Tribunal held at T [126] that on balance the consideration of potential legal consequences of a decision to refuse a visa carried substantial weight in favour of exercising the discretion in the applicant’s favour. The Tribunal stated that this was in part because an application to the Naoeroan government for a visa for the applicant had been lodged, which demonstrated a clear intention by the Government to remove the applicant to Naoero. The Tribunal stated that this might take some time to play out or for one of the other options to emerge, leading to the possibility of a prolonged period in detention and continuing visa uncertainty. The Tribunal concluded that such was the significance of legal consequences in the present matter that it had decided to treat it as a primary consideration.

Other consideration 9.2 – extent of impediments if removed

22    Consideration 9.2 is concerned with impediments if removed to a home country, which in the case of the applicant was Iran. The Tribunal recorded the submissions advanced on behalf of the applicant in relation to impediments if removed to Iran. The Tribunal concluded at T [130] –

The Applicant is 40 years’ old. Apart from the mental health conditions diagnosed by Ms Mynard, there is scant reference to the other physical conditions, injuries, or ‘ongoing specialised treatment and counselling’ he relies upon. The Applicant has not invoked any language or cultural factors. In terms of being able to re-establish himself in his ‘home country’, the Applicant cannot be removed to Iran because of the 2024 protection finding in his favour. Impediments if removed to Iran therefore do not confront him and this consideration carries neutral weight.

Other consideration 9.3 – impact on Australian business interests

23    At T [132] to [133] the Tribunal referred to the submissions advanced on behalf of the applicant in relation to this consideration and the evidence that was relied on. The Tribunal expressed concern that some of the evidence contained false or misleading information. The Tribunal concluded by stating at T [134] that it did not accept that a decision against the applicant would “significantly compromise the delivery of an important service or major project”, picking up the language of clause 9.3(1) of Direction No 110. The Tribunal therefore placed neutral weight on this consideration.

The Tribunal’s conclusions

24    The Tribunal concluded at T [135] to [137] that the applicant had repeatedly breached community expectations and aspects of his conduct raised serious character concerns. The Tribunal stated that the totality of the applicant’s crimes and other misconduct was very serious and reflected a concerning disregard for Australian laws, the rights of others, and custodial rules. The Tribunal considered that the applicant constituted a moderate and unacceptable risk of recidivism, which may cause very serious harm if repeated and he should therefore expect to forfeit the privilege of staying in Australia.

25    The Tribunal stated that notwithstanding more than a decade in Australia, the applicant had very limited prosocial ties. The Tribunal referred to its earlier conclusion that the legal consequences confronting the applicant weighed most strongly in his favour and that the Tribunal had decided to treat this as a primary consideration.

26    However, the Tribunal determined that the discretion under s 501(1) of the Act should be exercised to refuse to grant the applicant a visa. That was because the Tribunal concluded that the primary considerations of Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community considerably outweighed the combined weight given to the countervailing primary and other considerations.

The applicant’s application for review to this Court

27    The applicant alleges jurisdictional error by the Tribunal on five grounds. For the reasons that follow I uphold Ground 1.

28    To accommodate the possibility that this matter may go further, I have considered the other grounds in full and I reject them.

Ground 1 – the legal consequences of the decision

29    Ground 1 is in the following terms –

The second respondent fell into jurisdictional error by failing to undertake its statutory task, in failing to correctly apply Direction No 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) in respect of the legal consequences of its decision.

Particulars

i.    Legal consequences of the decision are a relevant consideration under Direction 110.

ii.    The second respondent incorrectly applied a “direct or immediate” limitation on the legal consequences to be considered under Direction 110: at T [124].

iii.    In any event, the second respondent failed to accurately determine the direct or immediate consequences of its decision by reference to the currently applicable statutory framework: cf T [123(a)(ii)].

Ground 1 – the applicant’s submissions

30    The applicant submitted that the Tribunal misunderstood the task required by para 9.1 of Direction No 110 concerning the legal consequences of its decision. The applicant submitted that, if the protection visa application were refused under s 501(1), the legal consequence would be that the applicant would remain in immigration detention and be removed from Australia as soon as reasonably practicable to Naoero. The applicant submitted that those legal consequences followed from the following two circumstances: (i) the applicant was owed protection and so could not be removed to his home country nor, as a result of NZYQ, indefinitely detained; and (ii) the Minister had applied to the Naoeroan Government on behalf of the applicant for a long term stay visa such that there was a real prospect of the applicant’s removal becoming practicable in the reasonably foreseeable future and he could be detained pending removal to Naoero.

31    The applicant relevantly submitted that the Tribunal’s reasons disclosed three related errors. First, it was submitted that the Tribunal failed to engage with the operation of s 198 of the Migration Act in circumstances where an application for a long term stay visa had already been made and a bridging visa was not available. Secondly, it was submitted that the Tribunal wrongly confined its consideration to consequences that were said to be “direct or immediate”, thereby introducing a limitation not found in para 9.1 of Direction No 110. Thirdly, it was submitted that the Tribunal incorrectly treated removal to Naoero as dependent upon the exercise of non-statutory executive power and intergovernmental arrangements, rather than as a consequence capable of arising through the operation of the statutory removal provisions. In support of those submissions, the applicant sought to distinguish ZKDP v Minister for Immigration and Citizenship [2026] FCA 502 at [17] (Owens J) in which removal to Naoero had been regarded as only a contingent possibility in respect of which the evidence was “largely, if not entirely, silent”.

32    The applicant submitted that by taking its erroneous approach the Tribunal excluded from its consideration the consequences to the applicant of removal to Naoero notwithstanding that the Commonwealth had already commenced the relevant visa process and that removal to Naoero was a reasonably foreseeable consequence of an adverse decision, and notwithstanding the applicant’s submissions to the Tribunal on the topic with which the Tribunal failed to engage.

33    The applicant submitted that these matters were material to the outcome. It was submitted that although the Tribunal recognised that an adverse decision would cause distress to the applicant and accorded that consideration substantial weight, the Tribunal nevertheless failed properly to perform the task required by para 9.1 of Direction No 110. The applicant submitted that, had the Tribunal correctly understood and applied the legal consequences consideration, there was a realistic possibility that the overall exercise of discretion under s 501(1) could have produced a different result.

Ground 1 – the Minister’s submissions

34    The Minister submitted that the Tribunal clearly appreciated that the immediate consequence of an adverse decision would be the applicant’s continued immigration detention. The Tribunal expressly recognised that detention could continue while any judicial review proceeding was on foot and while the application for a Naoeroan long term stay visa remained pending. The Tribunal also acknowledged the possibility of a prolonged period of detention and visa uncertainty and treated the legal consequences of its decision as a consideration of such significance that it was treated as a primary consideration.

35    The Minister further submitted that the Tribunal did not fail to consider the prospect of removal to Naoero. Rather, the Tribunal recognised that removal to Naoero was a possibility and gave substantial weight to the legal consequences consideration in part because the existence of the long term stay visa application demonstrated a clear intention on the part of the executive government to remove the applicant there. However, the Minister submitted that the Tribunal was entitled to conclude that removal to Naoero was not a direct or immediate consequence of its decision because it remained uncertain whether, and when, the Naoeroan government would approve the visa application. In that respect, removal to Naoero depended upon future events and was therefore contingent.

36    The Minister submitted that the Tribunal was not required to speculate about contingent future possibilities. It was submitted that although removal to Naoero might ultimately occur, it depended upon approval of a visa by a foreign state and was therefore not itself a legal consequence of the Tribunal’s decision. It was submitted that the Tribunal was therefore entitled to confine its consideration to those legal consequences that were reasonably foreseeable. On that basis, it was submitted that the Tribunal did not impermissibly narrow the scope of the legal consequences consideration by distinguishing between immediate consequences, such as detention, and more remote possibilities dependent upon future events.

37    Finally, the Minister submitted that the Tribunal’s reference to removal under a third-country arrangement resulting from non-statutory executive action and government-to-government negotiations should be understood in context. It was submitted that the Tribunal’s discussion of that topic concerned the separate possibility of removal to a third country if the applicant were granted a Bridging R visa and did not indicate any misunderstanding of the prospect of removal to Naoero or of the statutory scheme governing that possibility.

Ground 1 is upheld

38    I accept the applicant’s claim that the Tribunal erred in its consideration of the legal consequences of an adverse decision and that the error was jurisdictional.

39    Statements of the High Court in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [196] (Gummow and Hayne JJ), Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] (Gageler and Keane JJ), and Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) recognise that a jurisdictional error may occur in the purported exercise of a statutory power if the decision-maker acts upon an incorrect understanding of the law, including where the erroneous understanding goes to an important attribute of the decision to be made. An allied principle is that a decision-maker may fall into jurisdictional error in failing to take into account the legal framework of the decision and its legal consequences, especially if those consequences are important in human terms: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (NBMZ) at [9] (Allsop CJ and Katzmann J).

40    The authorities have addressed the degree of proximity between a decision and a legal consequence that is required before the consequence must be considered by the decision-maker. The authorities have also addressed the related issue of the content of legal consequences. The authorities, and the apparent conflict in views expressed in them, were reviewed by Colvin J in Fraser v Minister for Immigration, Citizenship & Multicultural Affairs [2026] FCA 336 (Fraser) at [32] to [38] in terms that were approved by the Full Court in Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130 (Manebona) at [66] (Collier, Neskovcin and Moore JJ).

41    There are three related points that are identified in Fraser and in turn Manebona. The first is that claims that a decision-maker is required to consider the legal consequences of a discretionary decision will arise in different statutory contexts and therefore their resolution will be shaped by the statutory framework. The second is that the degree of proximity that is required between a decision and a legal consequence that requires consideration is a product of statutory construction that takes as its starting point the subject matter, scope and purpose of the legislation. Accordingly, there may be cases where legal consequences that are not direct or certain must be taken into account: Fraser at [37]–[38]. The third is that legal consequences may be material because of the practical or human realities to which they give rise: NBMZ at [9]; Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [107] (North J) and [129] to [132] (Kenny and Perry JJ). Thus, legal consequences may be material because of their likely effect on the person who is the subject of the decision, and it is therefore the likely effect of a legal consequence that may call for consideration: see, for example, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] (Allsop CJ, Markovic J agreeing), noting that this was a case of visa cancellation and not visa refusal.

42    In the present case, there is no question that it was a condition on the exercise of the Tribunal’s review function that it take into consideration certain legal consequences of its decision. The source of that requirement was not statutory implication but the express terms of Direction No 110. By s 499(2A) of the Migration Act the Tribunal was required to comply with Direction No 110. Paragraph 9(1) of Direction No 110 provided that in making a decision under, amongst other provisions, s 501(1), certain considerations must be taken into account, where relevant, including “in accordance with the following provisions … a) legal consequences of the decision”. The “following provisions” stated, amongst other things: that “[d]ecision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section” (para 9.1(1)); that “[w]here a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen” (para 9.1.1(1)); and that this means that “the non-citizen cannot be removed to that country in breach of non-refoulement obligations” but that “[i]nstead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made” (para 9.1.1(2)). The terms of Direction No 110 must be read subject to the constitutional limitations on lawful detention recognised in NZYQ.

43    It is clear that the Tribunal understood that removal of the applicant to Naoero pursuant to s 198 of the Migration Act was in prospect. The Tribunal referred at T [122] to the Minister’s submissions that the Minister had applied for a Nauruan Long Stay Visa on the applicant’s behalf and that if the visa was granted the applicant would be liable to removal there. At T[123](a)(ii) the Tribunal referred to the “clear intention of the executive Government” in making the visa application and stated that if the visa was granted then s 198 of the Act required the applicant to be removed there as soon as reasonably practicable.

44    As I have mentioned, before the Tribunal the applicant made detailed submissions addressing the claimed consequences to him of removal to Naoero based on the accepted premise that the Minister had applied to the Naoeroan government for a visa to be issued to the applicant and that upon the issue of the visa the applicant was liable to removal to Naoero. However, the Tribunal curtailed its consideration of the legal consequences of its decision in a way that was not authorised by Direction No 110 by importing a requirement that a legal consequence had to be direct or immediate before its consideration was required. For that proposition, the Tribunal cited the decision of the Full Court in BNGP at [101] to which I referred earlier. BNGP was a different case. In BNGP, the Full Court addressed the question whether a personal decision of the Minister made in the national interest to intervene and refuse a visa was legally unreasonable in the sense of being irrational because claimed legal consequences were not taken into account. It was in the context of claimed irrationality of decision-making in the national interest that a distinction was drawn in BNGP between inevitable or certain legal consequences and consequences that were merely probable or arguable. That is not a distinction that is of general application, and as a universally applicable dichotomy must be taken to have been rejected by the Full Court in Manebona. Further, there is no justification to import such a qualification into para 9.1 of Direction No 110 where the legal consequences are expressly specified. The first legal consequence identified in para 9.1(1) is that the unlawful non-citizen will be liable to removal from Australia as soon as reasonably practicable. It was that prospect that required consideration having regard to the established facts and circumstances before the Tribunal. Moreover, when addressing the practical implications of a legal consequence, there is no warrant to confine the practical implications to those which are inevitable. In so many contexts, it is the risk of harm, or the risk of detriment, that may fall for evaluation as a practical implication of a legal consequence.

45    The foreseeable removal of the applicant to Naoero pursuant to s 198 of the Act was such a significant practical implication of the legal consequences for the applicant that it was fairly within the matters that the Tribunal was required to consider pursuant to Direction No 110. On the material before the Tribunal this was not an outcome that was so remote that it could reasonably be excluded from the Tribunal’s consideration. Rather, the liability of the applicant for removal was a direct legal consequence which para 9.1 required the Tribunal to consider, and on the material before the Tribunal, the Direction required the Tribunal to consider the reasonable chance that removal would be to Naoero.

46    I accept the applicant’s submission that the error by the Tribunal was material. The result of the Tribunal’s error was that its consideration of consequences stopped at the point of finding that an adverse decision would be distressing for the applicant and those to whom he may be close which had the potential to affect his mental health adversely. The Tribunal gave no actual consideration to any risk of harm or detriment to the applicant or impediments should he be removed to Naoero, which was on the cards. Having regard to the relatively low threshold of materiality referred to in LPDT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT) at [7], there was a realistic possibility that the Tribunal could have exercised its discretion differently had it given attention to the applicant’s claims in relation to the detriment he might face should he be removed to Naoero.

Ground 2 – the extent of impediments if removed

47    Ground 2 is in the following terms –

The second respondent fell into jurisdictional error by failing to undertake its statutory task, in failing to correctly apply Direction 110 in respect of the applicable test to determine the extent of impediments if the applicant were removed to his home country.

Particulars

i.    The extent of the impediments that the applicant may face if removed to his home country is a relevant consideration under Direction 110.

ii.    At T [130] of its decision, the second respondent failed to address the hypothetical inquiry required by Minister for Immigration and Citizenship v RXJT [2026] FCA 33 at [20].

Ground 2 – the applicant’s submissions

48    The applicant submitted that paragraph 9.2 of Direction No 110 required the Tribunal to consider the extent of the impediments that the applicant would face if removed to Iran, having regard to the fact that he had been found to have a well-founded fear of persecution there and suffered from various mental and physical health conditions. The applicant relied on Minister for Immigration and Citizenship v RXJT [2026] FCA 33 (RXJT) at [20], in which Moshinsky J held that the inquiry required by paragraph 9.2 is hypothetical and is not conditioned by the likelihood that removal to the home country will in fact occur. The applicant submitted that the Tribunal was therefore required to assess the consequences on the assumption that the applicant was removed to Iran.

49    The applicant submitted that, contrary to that approach, the Tribunal reasoned at T [130] that because the applicant could not be removed to Iran because of the protection finding in his favour, impediments arising from such removal did not confront the applicant and that the consideration therefore carried neutral weight. The applicant submitted that the Tribunal thereby failed to engage with the hypothetical inquiry mandated by paragraph 9.2 and misconstrued its statutory task. The applicant further submitted that the error was material because the Tribunal attributed neutral weight to the consideration on the basis that it need not be considered, and there was a realistic possibility that the overall evaluative exercise under s 501(1) could have produced a different outcome had the Tribunal properly addressed the issue.

Ground 2 – the Minister’s submissions

50    The Minister submitted that Ground 2 should be rejected for three reasons. First, the Minister submitted that the Tribunal did in fact consider the impediments that the applicant would face on return to Iran, including his age, his medical conditions, and the absence of any language or cultural barriers: T [130]. To the extent that the Tribunal was required to consider those impediments hypothetically, it was submitted that it had done so.

51    Secondly, the Minister submitted that the Tribunal was only obliged to consider impediments on return to the applicant’s home country if it found that his removal there was reasonably practicable in the foreseeable future. It was submitted that this followed from the fact that Direction No 110 required the extent of impediments to be considered only “where relevant to the decision”, and from the fact that the Tribunal was not obliged to consider matters beyond the reasonably foreseeable future. The Minister relied on DXJL v Minister for Immigration and Citizenship [2025] FCA 1303 at [78] and NCNZ v Minister for Immigration and Citizenship [2026] FCA 870 at [32]. The Minister submitted that the applicant had the benefit of a protection finding within the meaning of s 197C(3) of the Act, and the effect of that finding was that, save in limited circumstances, he could not be removed to Iran. The Tribunal found that there was no evidence that the Minister would seek to remove the applicant’s protection finding, and that this was not an immediate consequence of its decision: T [123](a)(i). The Tribunal also found that there was no evidence that the applicant would request voluntary removal to Iran, which it considered unlikely in his circumstances: T [123](a)(ii). Given those findings, the Minister submitted that the Tribunal was not required to consider the extent of impediments on return any further than it did.

52    Thirdly, the Minister submitted that any error captured by Ground 2 was not material. The Tribunal gave the consideration neutral weight because the impediments did not confront the applicant, since he could not be removed to Iran because of the 2024 protection finding. It was submitted that asking a series of hypothetical questions about impediments on a notional removal could not displace that reason. The Minister submitted that the Tribunal could not realistically have given the consideration more weight, having found that the applicant would not face any impediment.

Ground 2 is rejected

53    Direction No 110 is concerned with a range of circumstances where visas might be refused or cancelled. The Direction applies to the cancellation of all visas, and not just protection visas or non-citizens where there are protection findings. The Direction therefore covers a variety of personal circumstances which might not be relevant in every case. For instance, not every case will involve a history of family violence committed by the non-citizen, not every case will involve a minor child who is affected by the decision, and not every case will involve a non-citizen who is covered by a protection finding. For these reasons, the qualifications in paras 6 and 9(1) to take account of considerations “where relevant” have work to do. However, para 9.2 is somewhat different. It is in the following terms –

9.2.    Extent of impediments if removed

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

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

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

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

54    In most cases of visa cancellation or refusal the non-citizen will have a home country. Putting aside those instances where the non-citizen might be stateless, para 9.2 requires consideration of impediments if the non-citizen is removed to the home country. As Moshinsky J stated in RXJT at [20] –

I note that paragraph 9.2 of Direction 110 is expressed in hypothetical terms that are not tied to the likelihood or otherwise of the non-citizen being removed to their home country. The paragraph provides that decision-makers “must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country …” (emphasis added). The use of the word “if” conveys that this consideration is concerned with a hypothetical scenario. Paragraph 9.2 does not expressly state that the Tribunal is to calibrate the weight to be given to this “other consideration” depending on the likelihood or otherwise of removal taking place.

55    In this case, the Tribunal stopped short of completing its consideration of impediments if removed because it folded its consideration of impediments into the question of what weight to give it.

56    Although the Tribunal’s consideration of impediments if removed was incomplete, I am not satisfied that the applicant has demonstrated that the error was material. The Tribunal stated at T [123](a)(ii) that there was no evidence that the applicant would, at some future point, request voluntary removal to Iran and that it seemed unlikely given his circumstances. And because there was a protection finding in relation to the applicant, it was open to the Tribunal to conclude as it did at T [130] that impediments if removed to Iran did not confront the applicant. The Tribunal gave this consideration neutral weight and I am not satisfied that the applicant has discharged the burden of showing that there was a realistic possibility that the Tribunal’s decision could have been different had it completed its consideration of the matters required by para 9.2.

Ground 3 – the nature and seriousness of the applicant’s previous offending conduct

57    Ground 3 is in the following terms –

The second respondent fell into jurisdictional error by failing to undertake its statutory task, in failing to correctly apply Direction 110 in respect of the nature and seriousness of the applicant’s previous offending conduct.

Particulars

i.    The nature and seriousness of the applicant’s conduct to date is a distinct aspect of the relevant consideration of the protection of the Australian community under Direction 110.

ii.    The second respondent impermissibly adopted a prospective inquiry as part of its consideration of the nature and seriousness of the applicant’s past offending conduct, contrary to Direction 110: at T [59], T [61].

Ground 3 – the applicant’s submissions

58    The applicant’s submissions under Ground 3 were directed to the Tribunal’s findings in relation to the seriousness of the applicant’s driving and arson-related offending which I summarised at [5] and [6] above.

59    The applicant submitted that the Tribunal misapplied para 8.1 of Direction No 110 in its assessment of the nature and seriousness of his previous offending. The applicant submitted that the consideration of the protection of the Australian community had two strands, which are temporally distinct: the first required a backward-looking assessment of the nature and seriousness of the offending or other conduct to date; the second required a forward-looking assessment of the risk to the community should the person offend again or engage in other serious conduct. In support of that submission, the applicant relied upon an observation of Mortimer J in Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 (Williams) at [104] that a decision-maker must look first at past conduct and assess its nature and seriousness, and only then return to risk, which is directed to future conduct.

60    The applicant submitted that at T [59] the Tribunal conflated those strands by importing a prospective inquiry into its assessment of the nature and seriousness of his past offending, in that it reasoned by reference to the potential of that conduct to cause death, serious injury, or financial harm to other road users or pedestrians. That approach, the applicant submitted, led the Tribunal to characterise the applicant’s driving offences as “collectively serious”, notwithstanding that the conviction was for driving at certain excessive speeds, and that no death, serious injury, or financial harm was found to have occurred. The applicant submitted that the Tribunal erred in the same way at T [61] in relation to his conviction for attempted criminal damage by fire, where it reasoned that uncontrolled fire had the potential to cause death, serious physical or psychological injury, or financial harm and disruption. The applicant submitted that the potentiality upon which the Tribunal relied was not established as a matter of historical fact.

61    The applicant submitted that the error was material, in that there was a realistic possibility that a different outcome would have been reached in the evaluative exercise of the discretion under s 501(1) had the Tribunal applied the correct temporal analysis to each strand of the consideration.

Ground 3 – the Minister’s submissions

62    The Minister submitted that a decision-maker does not err by assessing the seriousness of a non-citizen’s conduct by reference to the types of harm that might have resulted from it. The Minister also submitted that the two “strands” the applicant identified were not separate and discrete. Taken together, they informed the evaluation of whether the protection of the Australian community was served by refusing the visa.

Ground 3 is rejected

63    I do not accept the applicant’s submissions in relation to Ground 3. The Tribunal did not err in the way submitted by the applicant. The Tribunal did not conflate the two inquiries that para 8.1(2) of Direction No 110 requires. It addressed them separately in the order the applicant submitted Williams requires. The Tribunal characterised the seriousness of the applicant’s offending by addressing the risk of harm to others that the applicant had created. This was completely orthodox. It did not involve the Tribunal conflating the inquiries into the seriousness of the applicant’s past conduct, and the risk of further harm that might arise from future conduct. The applicant’s submissions otherwise are based upon an incorrect reading of the Tribunal’s reasons.

Ground 4 – denial of procedural fairness

64    Ground 4 is in the following terms –

The second respondent fell into jurisdictional error by failing to afford the applicant procedural fairness, in circumstances where the second respondent required corroboration of evidence on matters to which it had not alerted the applicant the Tribunal would find that it did not otherwise believe, and which had not otherwise been put in issue.

Particulars

i.    The second respondent made critical observations at T [5], [6], [27], [38], [45], [98(c)], [99(c)], [99(d)] and [133] as to the lack of corroboration on evidence relating to matters which had not been put in issue either before the Tribunal or before the delegate.

ii.    The second respondent did not set out the open-source material as to “Sunshine Grammar School” in the evidence to which it had regard: compare T [24] and T [38].

Ground 4 – the applicant’s submissions

65    The applicant submitted that the Tribunal had in effect disbelieved the whole of his evidence, and that neither the Minister nor any earlier decision-maker had put his credibility as a whole in issue. The applicant submitted that the Tribunal’s disbelief was manifest in the Tribunal’s reasoning through its “persistent search for corroboration of evidence”.

66    The applicant submitted that there was a contrast between the breadth of the Tribunal’s disbelief and the way in which the Tribunal had questioned him at the hearing. The applicant submitted that the Tribunal’s questioning went only to clarifying discrete matters such as his birthplace, his education, his work experience in the construction and mining industries, and which school the younger child of his partner attended. The applicant submitted that nothing was put to him to indicate that the Tribunal would regard corroborating documents as necessary, or that his own testimony on those matters raised any issue of veracity.

67    In relation to the school, the applicant submitted that the Tribunal did not put to him that it doubted that “Sunshine Grammar School” existed, and that the Tribunal resolved that point on the basis of open-source material that was not put to him.

68    The applicant submitted that the situation was exacerbated by the way the Tribunal prefaced its questioning, saying in one instance “I just want to make sure that I understand some of the evidence that’s before me, and where there are some inconsistencies, to get your perspectives on that”. The applicant submitted that this would ordinarily signal that the Tribunal would identify its concerns and give him a meaningful opportunity to respond to them. The applicant submitted that instead, the Tribunal raised new issues on matters that had previously been undisputed, without disclosing any concern. The applicant submitted that the questioning had the substance and effect of prosecuting additional parts of the Minister’s case and submitted that in that respect, it involved methods of inquiry of the kind that Evatt J warned against in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 (Ex parte Bott) at 256, because they necessarily advantage one party and disadvantage the other. It is convenient to note here that Evatt J dissented in Ex parte Bott, and that the observations relied on by the applicant were made in a different statutory context which is apparent from what Evatt J said at 256, which included provisions which gave an appellant to the relevant tribunal the benefit of the doubt, and which reversed an onus of proof upon an appellant making out a prima facie case.

69    The applicant accepted that the rules of evidence did not bind the Tribunal, and that an inquisitorial tribunal need not give a running commentary on what it is considering. However, the applicant submitted that neither point displaced the Tribunal’s obligation to afford natural justice. The applicant submitted that because the matters in question had not been disputed by the Minister or by the Tribunal at the previous hearing, he was left without any meaningful opportunity to respond. He submitted that the Tribunal’s questioning crossed the line between an inquisitorial tribunal obliged to act fairly and an adversarial cross-examiner damaging a witness’s credibility on new grounds, citing Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 (Re Ruddock) at [57] (Gummow and Heydon JJ, Gleeson CJ agreeing). The applicant submitted that this was particularly so because the Tribunal had emphasised the two-day rule and that he could not put on new evidence. The applicant submitted that practical injustice had resulted.

70    On materiality, the applicant submitted that the Court should infer that, if he had been fairly put on notice of the issue about his credibility as a whole, or of the specific matters raised, including the school, he could have addressed those matters by further evidence or submissions, citing LPDT at [15].

Ground 4 – the Minister’s submissions

71    The Minister submitted that the Tribunal’s reasons did not show that it disbelieved the whole of the applicant’s evidence. It was submitted that the passages on which the applicant relied did one of two things. They identified an inconsistency in the evidence, or they noted a lack of corroborating evidence, particularly about the applicant’s claimed academic achievements, his employment record and his prosocial ties with the community. The Minister submitted that the Tribunal did not wholly discount those matters. For example, at T [99](c) the Tribunal gave some weight to the applicant’s study and work in Australia, even though they were largely uncorroborated by academic or employment records.

72    The Minister submitted that none of the Tribunal’s findings about the quality of the applicant’s evidence needed to be put to him during the review. At their highest, the findings rejected particular claims because of inconsistencies, gaps or a lack of detail in the evidence. In support, the Minister cited SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 (SZBYR) at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). On that basis, as a step along the way the Minister submitted that such matters are not “information” for the purposes of s 359A or the former s 424A of the Migration Act. The Minister then relied on Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] (French CJ and Kiefel J) to support a submission that excluding this kind of material from the statutory provisions relating to natural justice was consistent with the limits of the common law hearing rule. The Minister submitted that the Tribunal did not have to tell the applicant that it might not accept his evidence or might rely on gaps within it.

73    In any event, the Minister submitted that the Tribunal had asked the applicant specific questions at the hearing about each of these matters. It asked about the inconsistencies in his evidence about where he was born. It also asked about the absence of documents relating to his academic achievements, the absence of statements from family members, the absence of corroborating evidence about his employment, and the school the younger child attended. In oral submissions the Minister took the Court to several passages of the transcript of the hearing before the Tribunal where the Tribunal asked the applicant about these matters.

74    In relation to the Tribunal’s statement that open-source material did not reveal the existence of a “Sunshine Grammar”, the Minister submitted that for two reasons the Tribunal’s use of open-source material did not constitute a denial of procedural fairness. First, the content of the Tribunal’s obligation to afford procedural fairness did not extend to the Tribunal’s passing observation that the school did not exist. The Minister submitted that the Tribunal did not return to that observation, and it formed no part of its findings on the best interests of minor children. Secondly, the Minister submitted that the Tribunal was not obliged to disclose every piece of information before it, and in particular did not have to disclose general factual information that could scarcely be disputed and was in the public domain. For the same reasons, the Minister submitted that any breach was immaterial.

75    Finally, the Minister submitted that the applicant’s submissions did not give enough recognition to the Tribunal’s inquisitorial function. The Minister submitted that the Tribunal was entitled to question the applicant about topics it considered relevant to reaching the correct or preferable decision. The Minister submitted that questioning the applicant on topics that might be seen as contrary to the applicant’s interests did not make the review procedurally unfair.

Ground 4 is rejected

76    I do not accept the applicant’s submissions in relation to Ground 4.

77    I have already addressed at [68] the applicant’s reliance on the dissenting judgment of Evatt J in Ex parte Bott, which does not assist the applicant.

78    In relation to the applicant’s reliance on Re Ruddock, the main point made at [55] to [58] was that a review by the Refugee Review Tribunal was inquisitorial and not adversarial, and as a consequence the Tribunal was not obliged to “put” a case as if Browne v Dunn (1893) 6 R 67 applied. The provision of the Migration Act to which Gummow and Heydon JJ referred in Re Ruddock broadly corresponds to ss 49, 50, and 52 of the Administrative Review Tribunal Act 2024 (Cth) to which a review under s 500 of the Migration Act is subject and under which the Tribunal is not bound by the rules of evidence and may inform itself as it considers appropriate. Although the Minister may be a party to a review under s 500, the Tribunal’s role remains inquisitorial and the presence of the Minister as a contradictor underscores that the Tribunal itself has no case to put.

79    Moreover, I do not accept the premise of Ground 4. As the Minister submitted, the Tribunal did not disbelieve the whole of the applicant’s evidence. The passages on which the applicant relied either noted inconsistencies in the evidence or observed that particular claims were uncorroborated. More fundamentally, the applicant gave evidence in support of his claims, so his credibility was necessarily in issue on the review, and the Tribunal was not obliged to accept his evidence uncritically. Procedural fairness required the Tribunal to identify to the applicant any issue critical to the decision that was not apparent from the decision under review or the material before it, and to give him an opportunity to address it: SZBEL at [35]. It did not require the Tribunal to disclose its subjective appraisal of the evidence, or to give a running commentary on what it thought of the evidence as it was given: SZBEL at [48]. Nor was the Tribunal required to point out gaps in the applicant’s evidence or the absence of corroboration before it made findings: SZBYR at [18]; SZGUR at [9]. In any event, the transcript of the hearing before the Tribunal shows that the Tribunal raised several matters with the applicant, including: the inconsistent references to his place of birth; the absence of documents about his academic qualifications; the absence of statements from Ms DD’s children; and the absence of documents from former employers. The applicant had an opportunity to respond to each of them.

80    The Tribunal’s statement at T [38] that open-source material did not reveal a “Sunshine Grammar” school in Melbourne also did not deny the applicant procedural fairness. The obligation to disclose adverse information applies to information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 628–629 (Brennan J). The Tribunal made the observation about “Sunshine Grammar” in passing, while summarising the applicant’s evidence. It formed no part of the Tribunal’s reasoning on the best interests of minor children at T [103]–[105]. Those conclusions rested on the absence of any evidence from Ms DD or her children, and on inconsistencies in the applicant’s own evidence to which the Tribunal referred at T [102], including his evidence that he did not have much of a relationship with the younger child. The same may be said of the Tribunal’s reference at T [123](a)(ii) to open-source reports about removals to Naoero. That was background to a matter that was notorious. In these circumstances, the applicant has not shown that he was denied an opportunity to be heard on any matter, or that there was practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]–[38] (Gleeson CJ). Nor has the applicant discharged his onus of showing that, if the Tribunal had raised either matter with him, there was a realistic possibility that its decision could have been different: LPDT at [7], [15].

Ground 5 – apprehended bias

81    Ground 5 is in the following terms –

Further or alternatively to ground 4, the second respondent fell into jurisdictional error by being affected by an apprehension of bias, in circumstances where the second respondent required corroboration of evidence on matters to which it had not alerted the applicant the Tribunal would find that it did not otherwise believe, and which had not otherwise been put in issue, and by characterising the applicant’s position as mere “claims”.

Particulars

i.    The particulars to ground 4 are repeated.

ii.    The second respondent referred to the applicant’s “claims” at T[5]-[7], [28], [31], [34], [38].

iii.    Further particulars may be provided upon receipt of the transcript of the hearing before the Tribunal.

Ground 5 – the applicant’s submissions

82    The applicant submitted that the same conduct relied on for Ground 4 also gave rise to a reasonable apprehension of bias. In oral submissions, counsel for the applicant identified the apprehended bias as being in the nature of prejudgment. The applicant submitted that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the matter, because the Tribunal had unilaterally made an adverse assessment of the whole of his evidence. The applicant submitted that the relevant circumstances included the Tribunal’s reasons. The applicant submitted that the Tribunal’s reasons contained the language of “claim” and “riposte” (T [5]–[7], [28], [31], [34], [38], [78](c)), and that its language, with its connotation of disbelief, added to the reasonable apprehension of bias. The applicant submitted that the scepticism the Tribunal showed in its questioning was enough to give rise to the necessary apprehension. It was submitted that the Tribunal’s questioning favoured the Minister rather than reflecting the Tribunal’s usual inquisitorial role, and that the Tribunal’s reasons showed the same scepticism.

83    The applicant submitted that it was appropriate to have regard to the Tribunal’s reasons in deciding whether there was an apprehension of bias. The applicant relied on the statement of Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (CNY17) at [20] that the totality of the circumstances includes the decision and the reasons given for it. The applicant also relied on observations to similar effect by Edelman J in that case, and on the consideration of the authorities by Rangiah J in Leo’o Olo v Minister for Immigration and Multicultural Affairs [2026] FCA 10 (Leo’o Olo) at [39]–[43].

Ground 5 – the Minister’s submissions

84    The Minister submitted that a fair-minded lay observer would not apprehend that the Tribunal might have prejudged the review merely because, on various matters, it sought documentary corroboration of the applicant’s evidence or claims. The Minister submitted that this was a wholly orthodox approach to fact-finding. It was submitted that a lay observer would see no difficulty in the Tribunal asking for documentary evidence where it would be expected to exist, such as records of academic achievements or employment history. It was also submitted that the fair-minded lay observer would understand that the Tribunal was not limited to the matters raised by the delegate or by the parties in their submissions and that its task was to decide whether to exercise the discretion to refuse the visa after conducting an inquisitorial review.

85    The Minister also pointed out that the applicant was represented at the hearing by lawyers and that the Tribunal’s questions to the applicant about documents did not give rise to any submission to the Tribunal at the time.

86    The Minister submitted that the applicant’s approach to the claim of apprehended bias was impermissible. That approach was to review the Tribunal’s reasons, take issue with particular findings or particular expressions in them, and then assert bias. The Minister relied on Leo’o Olo and Rangiah J’s conclusion at [43] that reasons might be used to examine a claim of apprehended bias where they are relied on as evidence of some aspect of the conduct of the hearing, or where they disclose some relevant fact not previously known to the parties. The Minister submitted that the applicant did not seek to use the reasons in that way. Instead, the applicant sought to draw fine-grained distinctions about the meaning of words such as “claim” and “riposte”. The Minister submitted that, even if this were permissible, those words could not give rise to an apprehension of bias in a fair-minded lay observer.

87    As to the applicant’s reliance on CNY17, the Minister noted that Kiefel CJ and Gageler J dissented in CNY17 and submitted that it is not permissible to construct a ratio decidendi by the aggregation of various elements of separate reasons, still less to extract an element from a dissenting judgment and combine it with an element from a majority judgment in an attempt to create a majority in favour of that element, citing Perara-Cathcart v The Queen [2017] HCA 9; 260 CLR 595 (Perara-Cathcart) at [134] (Nettle J). There is an irony in the fact that the Minister relied on the dissenting judgment of Nettle J in Perara-Cathcart, who was in dissent because the majority upheld the Crown’s notice of contention. In any event, the principle essayed by Nettle J at [134] is well supported by the high authority which his Honour cited, namely Victoria v Commonwealth (1971) 122 CLR 353 at 382 (Barwick CJ), Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314 (Mason CJ, Wilson, Dawson and Toohey JJ), and Great Western Railway Co v The Owners of SS Mostyn [1928] AC 57 at 73–74 (Viscount Dunedin).

Ground 5 is rejected

88    The applicable test is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 (Michael Wilson) at [31] (Gummow ACJ, Hayne, Crennan and Bell JJ). The test is objective, and an inquiry about apprehended bias must be kept distinct from any inquiry about actual bias: Michael Wilson at [33]. Applying the test involves two steps. The first is to identify what it is said might lead the decision-maker to decide the matter other than on its legal and factual merits. The second is to articulate the logical connection between that matter and the feared departure from deciding the matter on its merits. A bare assertion of prejudgment is of no assistance without that articulation: Michael Wilson at [63], applying Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]. The applicant did not articulate that connection. The conduct on which the applicant relied was the Tribunal’s questioning about corroboration of his evidence. For the reasons I gave in relation to ground 4, that questioning was an orthodox incident of an inquisitorial review. A fair-minded lay observer would understand that the Tribunal was entitled to ask why documents that would ordinarily be expected to exist, such as academic and employment records, had not been produced. The observer would also understand that the Tribunal was not obliged to accept the applicant’s evidence uncritically. Asking those questions shows that the Tribunal was testing the evidence, not that it had prejudged it. Nor did the questioning appear to have the confrontational or aggressive character that Gummow and Heydon JJ described in Re Ruddock at [57] and which might run the risk of a reasonable apprehension of bias arising.

89    The applicant’s reliance on the Tribunal’s reasons faces a further difficulty. In Michael Wilson at [67], Gummow ACJ, Hayne, Crennan and Bell JJ said that an allegation of apprehended bias does not direct attention to, or permit consideration of, whether the decision-maker had in fact prejudged an issue. Their Honours said that asking whether reasons delivered after the hearing confirm, enhance or diminish a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry, by first assuming that the apprehension exists. They also said that such an inquiry moves perilously close to the fallacious argument that, because one side lost, the decision-maker was biased, or that an appealable error demonstrates prejudgment. On that basis, their Honours held at [68] that the Court of Appeal had been wrong to take the trial judge’s reasons into account in deciding whether there was a reasonable apprehension of bias. Their Honours also said that the Court of Appeal had reached its conclusion only by impermissibly reasoning backwards from what was decided, and how it was decided. Michael Wilson is binding authority of the High Court. CNY17 does not displace it, for the reasons I gave at [87]. The applicant’s submissions invite the reasoning that Michael Wilson rejected. They take the Tribunal’s adverse findings, together with its use of words such as “claim” and “riposte”, and reason backwards to an apprehension that the Tribunal might have prejudged the review. Even if the Tribunal’s reasons may be considered in the limited circumstances identified by Rangiah J in Leo’o Olo at [43], the applicant did not rely on them as evidence of the conduct of the hearing, or as disclosing a fact previously unknown to him. To describe an applicant’s assertions as “claims” is the ordinary language of merits review and carries no connotation of disbelief. Further, there is nothing in the applicant’s reliance on the Tribunal’s reference to the applicant’s “riposte”, which occurred on one occasion at T [78](c). Read fairly and as a whole, the Tribunal’s reasons show a decision-maker that accepted some of the applicant’s evidence and gave it weight and rejected other evidence for reasons that it explained. That is not an appearance of prejudgment.

90    It is unnecessary that I address the Minister’s submission about waiver.

Conclusions

91    Because Ground 1 is upheld, I will order that writs of certiorari and mandamus issue to quash the Tribunal’s decision and require that the review be undertaken again according to law.

92    The Minister should pay the applicant’s costs of this proceeding.

Associate:

Dated:    5 October 2026