Federal Court of Australia

GWN25 by his Litigation Representative the Public Advocate v Minister for Immigration and Citizenship [2026] FCA 1535

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.    A writ of certiorari issue, removing into this court and quashing the decision of the second respondent dated 13 December 2024.

3.    A writ of mandamus issue, directed to the second respondent and requiring it to determine the application for review of the decision of a delegate of the first respondent dated 7 September 2023 according to law.

4.    The first respondent is to pay the applicant’s costs fixed in the amount of $9,232.20.

THE COURT NOTES THAT:

A.    The first respondent accepts that the decision of the second respondent is affected by jurisdictional error of the type identified in Minister for Immigration and Citizenship v DVRL (2026) 316 FCR 477. That is, in circumstances where:

(i)    the applicant had expressly advanced a case that his presence in the Australian community as the holder of his original permanent visa (that is, if the cancellation of his visa was revoked) would result in a lower risk to the community than as a holder of a Bridging Visa R, because of the different treatment options that would be available to him, which might impact his risk of recidivism;

(ii)    the applicant had adduced expert evidence to support that case (which was in part accepted by the first respondent’s expert); and

(iii)    the Tribunal appeared to accept that there was at least some difference in the applicant’s future treatment on the different visas (and, therefore, some potential difference in the risk of him reoffending),

the Tribunal was required, in considering the matters identified in cl 8.1.2 of Direction 110, to consider the different levels (if any) of risk to the community if the applicant was in the community as a holder of the different visas but did not do so in this case.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an amended originating application dated 14 October 2025, the applicant moves for prerogative relief directed to a decision made by the second respondent (the “Tribunal”), on 13 December 2024. By that decision (the “Tribunal Decision”), the Tribunal resolved not to exercise its power under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the mandatory cancellation of a visa with which the applicant had been issued. The applicant maintained that the Tribunal Decision was a product of jurisdictional error, in part because it was made otherwise than consistently with the requirements of a direction issued under s 499 of the Act.

2    The application was scheduled for hearing in 2025; but, at the parties’ request, that hearing was delayed pending the determination of an appeal in another matter. On 27 May 2026, the full court handed down its decision in that other matter: Minister for Immigration and Citizenship v DVRL (2026) 316 FCR 477 (Perry, Stellios and Lenehan JJ) (hereafter, “DVRL”). Thereafter, this matter was relisted for hearing.

3    On Monday, 12 October 2026, the parties to the present matter informed the court of an accord that they have struck concerning its disposition. The first respondent now accepts, in light of the full court’s ruling in DVRL, that the Tribunal Decision is a product of jurisdictional error. He consents to—and, with the applicant, jointly proposes—orders in the nature of certiorari and mandamus, by which this court might set aside the Tribunal Decision and require that the Tribunal redetermine according to law the application that was its subject. Also agreed are mechanical orders concerning the identity of the first respondent and costs. As is the usual course, the second respondent has filed a submitting notice.

4    The court is now asked to endorse and make the orders that are jointly proposed. As a general rule, the court will not entertain such a course merely because the parties are agreed that it should. In VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 49, 50 [3]-[4], Colvin J observed:

3    Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.

4    Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

5    In Wardman v Macquarie Bank Ltd (No 2) (2023) 300 FCR 159 (Bromberg, Wheelahan and Snaden JJ), I wondered (at 167 [36])—at least in the slightly different appellate context that was there in focus—whether mandatory terms like “must” and “necessary” were “more definitive” than might always be required. Perhaps there might be a basis upon which to suppose that the court’s discretion to grant prerogative relief by consent is exercisable upon something less than persuasion that jurisdictional error has in fact transpired.

6    I needn’t speculate. Even assuming that the proper exercise of the court’s discretion to grant by consent relief in the nature of certiorari and mandamus directed toward an administrative decision turns upon acceptance that there has been—not merely that there might have been—an error of jurisdiction, I accept that the Tribunal Decision is in that category. In the note accompanying the orders that they jointly propose—and consistently with the court’s Consent Orders Involving a Federal Tribunal Practice Note (gpn-trib)—the parties identify the error by which they agree that the Tribunal Decision is attended and that justifies the making of those orders. It is unnecessary that I should add to what is there identified. I agree with the analysis and will substantially (although not totally) replicate it in the orders that I will make.

7    The effect of the full court’s ruling in DVRL is that the Tribunal was obliged, when considering “… the risk to the Australian community …” for the purposes of cl 8.1(2) of the applicable ministerial direction, to consider not merely the risk that the applicant might pose if his permanent visa were restored but also the risk that he might pose as the holder of an ongoing bridging visa. Its failure so to consider was an error of jurisdiction (I say conscious of what appears, admittedly without the benefit of argument, to be the limited—but not completely imaginary—prospect that the result might have been different had the ratio of DVRL been followed). The orders that the parties propose are appropriate.

Associate:

Dated:    16 October 2026