Federal Court of Australia

Puah v Minister for Immigration and Citizenship [2026] FCA 1511

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent relating to the applicant and dated 4 March 2026.

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

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

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant is a Malaysian citizen. He arrived in Australia under the authority of a visa in November 2002 shortly before his 18th birthday.

2    Following various lesser offences over the years, when he was 39 years old the applicant was convicted of possession and supply of a large commercial quantity of a prohibited drug, namely methylamphetamine. He was sentenced to five years imprisonment with a non-parole period of three years.

3    As a consequence, the applicant’s five-year resident return visa was mandatorily cancelled under s 501CA of the Migration Act 1958 (Cth). A delegate of the relevant Minister decided under s 501CA(4) not to revoke the cancellation.

4    The applicant applied to the Administrative Review Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision of the delegate.

5    The applicant now applies under s 476A of the Act for the decision of the Tribunal to be quashed and for the matter to be remitted to the Tribunal for reconsideration and redetermination according to law.

6    The applicant raises two grounds of review. First, the applicant contends that the Tribunal erred in not applying the principle in para 5.2(6) of the Minister’s Direction No 110 concerning whether, if the applicant had lived in Australia for most of his life, that should result in greater tolerance being afforded to his criminal conduct – referred to as the tolerance principle. Second, the applicant contends that the Tribunal erred in failing to consider his claim that he was the primary carer for his two elderly uncles who would be adversely affected by a negative decision.

The Tribunal’s reasons

7    It has always been common ground that the applicant fails to pass the character test (as defined by s 501) with the result that there has never been any contest with regard to the state of satisfaction referred to in s 501CA(4)(b)(i) not being met. Thus, the only real issue before the Tribunal was whether the Tribunal should be satisfied “that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)).

8    The Tribunal recognised that on 7 June 2024 the Minister issued Direction No 110 which sets out the considerations to be taken into account when considering a request to revoke a visa cancellation such as in the case of the applicant (at [11]). The Tribunal recognised that para 6 of the Direction provides that decision-makers “be informed by” the principles in para 5.2 when deciding whether to revoke a mandatory cancellation under s 501CA (at [12]). The Tribunal set out the principles in para 5.2, including principle (6), the tolerance principle, which is at the heart of review ground 1.

9    The Tribunal identified the “primary considerations” that it was required by para 8 of the Direction to take into account, as well as the “other considerations” that it was required by para 9 of the Direction to consider (at [13]-[14]). It then considered each of those matters under various headings.

10    The Tribunal concluded that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of not revoking the visa cancellation (at [79]). With regard to the tolerance that the Australian community might have for the risk of someone in the applicant’s position reoffending, the Tribunal twice cited the statement in para 8.1.2(1) of the Direction that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (at [58] and [77]). The Tribunal did not otherwise consider the level of tolerance that should be afforded the applicant’s criminal conduct. As will be seen, this is particularly relevant to review ground 1.

11    The Tribunal concluded that the primary consideration of family violence committed by the applicant should be given neutral weight because there was no evidence of any family violence committed by the applicant (at [81]).

12    The next primary consideration considered by the Tribunal was the strength, nature and duration of the applicant’s ties to Australia. The Tribunal recognised that it was required to consider the impact of the non-revocation decision on the applicant’s immediate family members in Australia where those family members are Australian citizens or permanent residents or have the right to remain in Australia indefinitely (at [82]). The Tribunal was satisfied that the applicant does not have any immediate family members in Australia (at [83]). However, the Tribunal accepted that the applicant has several extended family members, who are Australian citizens, living in Australia (at [84]). The Tribunal accepted that the applicant has many family members in Australia, that he has a strong and supportive bond with them and that if he were removed from Australia it would have a negative impact on his extended family members (at [84]-[86]).

13    The Tribunal accepted that the applicant has an extensive employment history in the hospitality industry in Australia through which he has made social links, particularly within the Asian community in Newcastle (at [89]).

14    Particularly pertinent to the applicant’s review ground 1, the Tribunal reasoned as follows (at [91]):

The Tribunal accepts that Australia has been the Applicant’s home for the last 23 years, having arrived in Australia at the age of 17, which it does not consider to be in the Applicant’s formative years.

15    The Tribunal concluded by placing moderate weight on the strength, nature and duration of the applicant’s ties to Australia in favour of revoking the decision to cancel his visa (at [91]).

16    In relation to the fourth primary consideration, namely the best interests of minor children in Australia who may be affected by the decision, the Tribunal considered the nature of the applicant’s relationship with four children. The fact that he does not play a parental role to any of them and the extent of his contact with them in the last five years or so led to the Tribunal giving limited weight to this consideration in favour of revoking the cancellation of the applicant’s visa (at [102]).

17    The Tribunal gave substantial weight in favour of non-revocation of the visa cancellation to the final primary consideration, namely the expectations of the Australian community (at [112]). The Tribunal applied the stated norm in para 8.5 of Direction 110, namely that the Australian community expects non-citizens to obey Australian laws while in Australia and that where 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 expects the government to not allow them to enter or remain in Australia (at [103]-[105], [110]). The Tribunal did so without considering whether the level of intolerance of criminal conduct expressed in that norm should be ameliorated by the tolerance principle. That was despite the Tribunal recording that the applicant had submitted that the norm was “extreme, rigid and intolerant” (at [106]). This is relevant to review ground 1.

18    It is not relevant for present purposes to traverse the Tribunal’s consideration of the “other considerations”, save that the Tribunal concluded that the legal consequences of the decision provide some weight in favour of revocation whereas the impact on Australian business interests is neutral (at [137]).

19    In conclusion, the Tribunal reasoned that although there are a number of considerations which weigh in favour of the applicant, the first primary consideration is generally given greater weight than the other primary considerations (at [138]). Having weighed all the considerations, the Tribunal was not satisfied that there is another reason to revoke the original decision to cancel the applicant’s visa (at [139]).

Review ground 1: the tolerance principle

20    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Direction No 110 was made under that provision. By s 499(2A), a person or body must comply with a direction under sub-s (1).

21    The purpose of Direction No 110 “is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act” (para 5.1(4)). The eight principles set out in para 5.2 “provide the framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA” (para 5.2). In contrast to that language of “providing a framework” within which to approach the decision-making task, “[t]he factors (to the extent relevant in the particular case) that must be considered in making a decision” are identified in Part 2 of the Direction (para 5.2).

22    What is meant by providing the “framework within which decision-makers should approach their task” is given further meaning by para 6 of the Direction:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

(Emphasis added.)

23    Principles (5) and (6) in para 5.2 are in these terms:

(5)     Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6)     With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

24    The applicant submits that the Tribunal failed to consider what level of tolerance should be afforded his criminal conduct on account of the fact that at the time of its decision he had lived in the Australian community for most of his life.

25    At the time of the Tribunal’s decision on 4 March 2026, the applicant had lived in Australia for almost 24 years, whereas he had lived in Malaysia for nearly 18 years. That is a clear majority of years in the Australian community, even accepting that he spent four of his years in Australia in gaol and immigration detention. However, the assessment of whether the applicant has lived “most of his life” in the Australian community is not merely a mathematical calculation of a “bare majority” but incorporates a contextual qualitative assessment: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; 412 ALR 502 (Kumar) at [64] (Logan, Sarah C Derrington and Anderson JJ).

26    In making such an assessment, it is also relevant that the applicant’s age at the time of his arrival in Australia, being 17 years and 11 months, would ordinarily be regarded as being in the period of a person’s formative years – it is before the person’s character has fully formed or developed: CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228 at [50] (Feutrill J). Further, the applicant has lived in Australia for the whole of his adult life. Notwithstanding the Tribunal’s curious finding that the applicant did not arrive during his formative years, taking those matters together – that the applicant had lived the clear majority of his life and the whole of his adult life in Australia, part of which would ordinarily be regarded as within his formative years, there was a strong case for the Tribunal to conclude that the applicant had lived “most of his life” in the Australian community within the meaning of principle (6). The tolerance principle was thus objectively relevant to the Tribunal’s task – it was aware of the primary facts that could readily support a finding that the applicant had lived most of his life in the Australian community. See Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [61]-[64] and KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229 at [9] (Colvin J).

27    However, the Tribunal failed to consider whether the applicant had lived most of his life in the Australian community, and if he had, what level of tolerance should be afforded his criminal conduct on account of that. In short, the Tribunal failed to consider or apply the tolerance principle.

28    The question thrown up by ground 1 is whether that matters, ie was it necessary for the Tribunal to have regard to the tolerance principle? There is no doubt the “primary” and “other” considerations identified in paras 8 and 9 of Direction 110 are mandatory considerations where they are objectively relevant and that failure to consider them may result in jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O’Callaghan and Colvin JJ, Derrington J agreeing). But what about the principles in para 5.2? What is the consequence of the Tribunal failing to consider a principle that is objectively relevant to the circumstances of the particular case?

29    In Kumar, the Full Court (at [66]) confirmed as correct the reasoning with regard to the tolerance principle of the primary judge in the judgment under appeal in that case, CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 (CWRG) (Colvin J). Accordingly, the following three relevant principles can be identified.

30    First, the tolerance principle is enlivened only through the gateway of a relevant mandatory consideration; it is not itself a mandatory consideration: CWRG at [28].

31    Second, if the tolerance principle is relevant, then it is an overarching matter that guides the manner and circumstances in which the relevant mandatory consideration is to be taken into account: CWRG at [27]. That is to say, the principle informs the decision-maker’s task of taking into account the mandatory “primary” and “other” considerations: CWRG at [60].

32    Third, the manner in which the tolerance principle informs that task is not prescribed. It is “a matter for the Tribunal to form a judgment as to whether and if so in what way, in all the circumstances, the tolerance principle … might guide the process of taking the specified considerations into account”: CWRG at [53]. The Tribunal is not bound to consider the tolerance principle “in any particularly rigid way”: Reid v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2024] FCAFC 16; 302 FCR 273 (Reid) at [56] (O’Bryan, Abraham and Shariff JJ).

33    The upshot is that the Tribunal’s consideration of the mandatory matters must be informed by the principles in para 5.2, where relevant, and a failure to be so informed will amount to a failure to make the decision in the manner required by Direction 110. Where such a failure is material (as explained in LPDT v Minister for Immigration and Citizenship [2024] HCA 12; 280 CLR 321 at [15]-[16]) it will amount to jurisdictional error.

34    In the present case, one of the relevant primary considerations was the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2). As a primary consideration must be taken into account, and in doing so the decision-maker must be informed by any relevant principle in para 5.2, the Tribunal had to take account of the risk to the Australian community informed by the tolerance principle if relevant.

35    In para 8.1.2(1), it is said that “decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”. As mentioned, the Tribunal cited that provision twice in its reasons thereby emphasising the community’s intolerance for criminal conduct. However, it gave no consideration to whether the level of the community’s intolerance for the applicant’s criminal conduct might be ameliorated by the tolerance principle, in circumstances where the tolerance principle was objectively relevant.

36    Another mandatory consideration in relation to which the tolerance principle is relevant is the expectations of the Australian community (para 8.5). The norm to be applied (Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 at [52]) is, as mentioned, that the Australian community expects non-citizens to obey Australian laws while in Australia and that where 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 expects the Government to not allow such a non-citizen to enter or remain in Australia. For that consideration to be taken account of in a manner informed by the principles in para 5.2, any principle relevant to the circumstances of the case must necessarily be brought into account. In the present case, for the reasons already given, the tolerance principle is such a principle because it has the capacity to result in greater tolerance being afforded for criminal conduct where the non-citizen has lived most of their life in the Australian community. As mentioned, the Tribunal gave no consideration to the tolerance principle in this (or any other) context.

37    Unlike the present case, in the other cases where this issue has arisen the Tribunal had at least engaged in some reasoning in relation to the tolerance principle, eg CWRG at [45] and Kumar at [60]; Reid at [51]-[53]; Donevski v Minister for Immigration and Citizenship [2026] FCA 248 at [27], [69] and [79] (Jackson J); Mitchell v Minister for Immigration and Citizenship [2026] FCA 703 at [24] (McEvoy J); Lafrenais v Minister for Immigration and Citizenship [2026] FCA 1290 at [16] (Owens J). That is true even of the last-mentioned case notwithstanding that it was held that the level of engagement with the representation that invoked the tolerance principle was inadequate (at [20]-[21]).

38    In the present case, the Tribunal extracted the tolerance principle early in its reasons (along with all the other principles in para 5.2) and referred to the requirement that its consideration of the “primary” and “other” considerations be informed by the para 5.2 principles. However, given that the tolerance principle is never mentioned again in the Tribunal’s reasoning, I am not satisfied that the Tribunal in fact gave any further consideration to the tolerance principle. The principle did not inform the Tribunal’s considerations of the “primary” and “other” considerations. Had it done so, the Tribunal would have had to reach a conclusion on whether the applicant had “lived in the Australian community for most of [his] life” and then, if it found that he had, whether or to what degree a higher tolerance for his criminal conduct should be applied. The absence of any mention of those matters satisfies me that they were not considered at all.

39    The irresistible implication arising from that conclusion is that the Tribunal’s consideration of the “primary” and “other” considerations, in particular that in para 8.1.2 but also in para 8.5, was not “informed” by the tolerance principle as required by para 6. Thus, the Tribunal failed to follow Direction 110 as it was required by s 499 of the Act to do. As the Minister accepts that such an error, if established, is material, the error amounts to jurisdictional error and review ground 1 must be upheld.

40    In view of that conclusion, it is not strictly necessary to consider review ground 2. However, against the possibility that I am wrong in relation to review ground 1, I will now consider review ground 2.

Review ground 2: the care representation

41    There is no dispute that the applicant’s representations to the delegate included the contention that if the cancellation of his visa was not revoked his two uncles, Richard Pua and Tommy Puah, would be adversely affected. That is because it was the applicant’s stated intention on release from immigration detention to live with Richard and care for him and for Tommy who lived only 20 minutes away. At the time of the Tribunal’s decision, the material before the Tribunal showed that Richard was 74 years old and Tommy was 66 years old and that they both lived alone in or near Newcastle. There is also no dispute that that contention (which I will refer to as the care representation) amounted to a “clearly articulated” representation (as referred to in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [25]) to the delegate which the delegate was required to consider.

42    Consistent with that requirement, the delegate considered the care representation. They found that the applicant planned to return to live with one of his uncles upon his release into the community and as two of his uncles do not have partners, he provides care and support for their day-to-day living when in the community. The delegate also acknowledged a letter of support from the applicant’s cousin, Phillep, which stated that the applicant is the primary carer for his elderly uncles in relation to their daily needs. The delegate recorded the submission made on behalf of the applicant that his uncles would be adversely affected in the event of a negative decision because the applicant would not be able to provide support and care for them. The delegate concluded that a negative decision would have an adverse impact on the applicant’s family and friends, “particularly his uncles”.

43    There is also no dispute that the Tribunal did not give any consideration to the care representation. The Minister’s answer to the applicant’s complaint in that regard is that the care representation was not made to the Tribunal and was therefore not required to be considered or, failing that, that the applicant’s representations to the Tribunal were inconsistent with the care representation such that the care representation should be regarded as having been withdrawn or not pressed.

44    There was a hearing before the Tribunal over two days. Evidence was adduced, witnesses were questioned and oral representations or submissions were made. Neither the applicant nor the Minister has considered it necessary to adduce the transcript of the hearing in the review application before the Court. The parties are content that the review be decided on the basis of the documentary record that served before the Tribunal and the Tribunal’s reasons. It is convenient to consider matters chronologically.

45    For reasons that are not obvious, the Tribunal required the Minister to file a statement of facts, issues and contentions (SFIC) before the applicant was required to do so notwithstanding that it was the applicant who was seeking a review of the delegate’s decision. The Minister’s SFIC essentially followed the structure of Direction 110. In relation to the strength, nature and duration of the applicant’s ties to Australia, being the relevant consideration in relation to the care representation, the Minister’s SFIC accepted that a cancellation decision may have some adverse impact on the applicant’s family members including his two uncles. The Minister’s SFIC expressly referenced evidence to the effect that the applicant intended to return to live with one of his uncles on release and that the applicant has family obligations to help provide care to his elderly uncles, Richard and Tommy.

46    The applicant’s SFIC said nothing about the applicant supporting his uncles, rather making the point that the applicant enjoys close relationships with various family members including his uncles and that the family members are extremely supportive of him and will provide support and accommodation to him if he were released from immigration detention.

47    Aside from the representations made to the delegate, the delegate’s reasons and the documents referred to in the Minister’s SFIC, there was other material before the Tribunal that indicated that the applicant intended returning to live with his uncle Richard. As against that, the Tribunal noted the oral evidence before it in which one of the applicant’s cousins stated that he was willing to provide the applicant with a place to live (at [86]).

48    Turning now to the role played before the Tribunal by the representations made to the delegate, the place to start is the operative statutory provision. Section 501CA(3) states that as soon as practicable after making the original cancellation decision, the Minister must give the person concerned a written notice that sets out the original decision and the reasons for it and “invite the person to make representations to the Minister … about revocation of the original decision”. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision under s 501CA(4)(b)(ii) commences with the former visa holder making such representations: Plaintiff M1 at [22]. Further, in determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations: Plaintiff M1 at [22].

49    The process from the invocation of the exercise of the statutory power by the original decision-maker to the subsequent review of the original decision by the Tribunal is “an administrative decision-making continuum”: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [53]. Features of the administrative decision-making continuum were identified in Kumar (at [25]), including the following:

(1)    The issues for consideration by the Tribunal will be shaped by the way in which the issues have been developed at anterior stages of the continuum.

(2)    Commencing with the original application for the exercise of the relevant statutory power, an applicant will have put forward particular reasons and material why that power ought to be exercised favourably. Some of these may have been accepted at the primary decision-making level.

(3)    The Tribunal’s own interlocutory practice and procedure is deliberately designed, by provision for an exchange of SFICs between the parties, to highlight the controversial issues of fact and law in the review.

(4)    In turn, the identification of the pertinent issues may be refined by oral submissions made to the Tribunal in light of the totality of evidence following a hearing.

(5)    In these circumstances, it is only natural to expect that the reasons of the Tribunal for its final decision will be coloured and shaped by the way in which issues have evolved beforehand.

50    It follows from that analysis that the role played by the original representations made to the delegate, which in this case included the care representation, is central and continuing even at the decision-making stage before the Tribunal – it is the representations that enliven the power to make the decision to review and revoke or not revoke the visa cancellation, including ultimately by the Tribunal. The issues that are presented for consideration in the representations may then be shaped and altered by what follows, but where a particular representation is not in contention before the Tribunal because it is accepted by the original decision-maker and then by the Minister in their SFIC, as occurred in this case, that representation remains one that is advanced before the Tribunal. It is not to be regarded as no longer being made because it is not expressly included in the applicant’s SFIC – there was no need to include it in the SFIC because it had been accepted by the original decision-maker and the Minister (ie it was uncontroversial) and it remained as part of the representations that enlivened the power.

51    This case is not like Burrows v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1364 at [55] (Burley J), relied on by the Minister, where it was concluded that a claim that was made in a personal circumstances form was not advanced in the representations before any of the decision-makers. It is also not like Neave v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FCA 478 (Feutrill J), also relied on by the Minister, where it was found that the contended for representation was not raised as a substantial and clearly articulated separate argument (at [29]-[30]).

52    For those reasons the Minister’s first answer to ground of review 2 must fail. That is to say, subject to the Minister’s second answer, the separate, clear and articulate care representation was made to the Tribunal and it was required to be considered by the Tribunal. The fact that it was not independently articulated in the applicant’s SFIC does not mean that it was not made in circumstances where it remained in the original representations, it was accepted by the original decision-maker and it was accepted by the Minister in the Minister’s SFIC.

53    Turning now to the Minister’s second answer, was the care representation impliedly withdrawn or varied by what the applicant presented to the Tribunal?

54    One can deal first with the fact that a cousin of the applicant gave evidence that he was willing to provide the applicant with a place to stay on his release. Such an offer does not detract from the applicant’s stated intention to live with his uncle Richard and, even if it did, it does not detract from the applicant’s stated intention to take care of his uncles, Richard and Tommy. That evidence does not have the effect of varying or withdrawing the care representation.

55    I accept that some of the facts that are relevant to the care representation changed over the course of the decision-making continuum. For example, before the delegate it was said that the applicant would take over the management of the uncles’ restaurant which would enable them to retire, but by the time of the Tribunal’s decision the uncles had closed the restaurant and retired and the applicant was instead possibly going to work in his cousin’s tiling business. But those facts do not detract from the central thrust of the care representation, namely that the applicant would live with his uncle Richard and be the carer for him and his uncle Tommy.

56    Similarly, the fact that the applicant’s SFIC emphasised that his family members, including his uncles, would support him does not detract from the uncontroversial contention that he would take care of his uncles.

57    For those reasons I am satisfied that the care representation remained a clearly articulated representation before the Tribunal which the Tribunal was required to consider. It was, of course, up to the Tribunal to attribute whatever weight or persuasive quality to the care representation that it thought appropriate: Plaintiff M1 at [24]. But the nature, form and content of the representation was such that it could not be ignored – it was clearly made, not in dispute, and relevant to the Tribunal’s decision. The Tribunal failed to have any regard to the care representation – it failed to “identify, understand or engage with” it: ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 at [60]-[61] (Mortimer, Colvin and O’Sullivan JJ). The Minister accepts that that failure, if established, is material. It thus amounts to jurisdictional error and review ground 2 must succeed.

Disposition

58    For those reasons, the decision of the Tribunal must be quashed and the matter remitted to the Tribunal for reconsideration. There is no reason why the costs should not follow the result.

59    I acknowledge the careful and helpful submissions by pro bono counsel for the applicant. The Court places a high value on lawyers stepping up and playing such a role in support of vulnerable people.

Associate:

Dated:    16 October 2026