Federal Court of Australia

SXHR v Minister for Immigration and Citizenship (No 2) [2026] FCA 1548

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the first respondent’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 Sri Lankan citizen who arrived in Australia as an unauthorised maritime arrival in 2012.

2    In 2021, the applicant validly applied for a Safe Haven Enterprise visa (a form of protection visa) which was refused by a delegate of the relevant Minister. Subsequent reviews of that decision, first to the Immigration Assessment Authority and then to the Federal Circuit and Family Court of Australia (Division 2), failed. The applicant is thus prevented by ss 46A(1) (unauthorised maritime arrival) and 48A(1) (protection visa application previously refused) of the Migration Act 1958 (Cth) from applying for or being granted a protection visa unless the Minister personally exercises the Ministerial intervention powers under ss 46A(2) and 48B(1), respectively, to remove those impediments.

3    In the meanwhile, the applicant applied for a Class EW Bridging E visa (BVE), a type of visa that permits a person to stay lawfully in Australia while arranging departure, finalising an immigration matter, or awaiting an immigration decision. A delegate of the Minister refused that application under s 501(1) of the Act on account of the applicant’s criminal record.

4    The applicant applied to the Administrative Review Tribunal for a review of that decision under s 500(1)(b). The Tribunal affirmed the delegate’s decision, but that was subsequently set aside on review to this Court and remitted to the Tribunal.

5    Upon remittal, a differently constituted Tribunal again affirmed the decision under review, which is to say that the application for a BVE remains refused and the applicant remains in immigration detention pending removal from the country. The applicant now seeks judicial review and the quashing of the Tribunal’s decision under s 476A of the Act.

6    Prior to the hearing before and decision of the Tribunal, the applicant requested the Minister to exercise the Ministerial intervention powers referred to above. However, by the time of the Tribunal’s decision the Minister had not yet made a decision on whether they will consider whether to exercise the Ministerial intervention power (as referred to in s 197E(5)), let alone a decision one way or the other on lifting the bar to the applicant applying for a protection visa.

7    It was not an issue before the Tribunal that the applicant failed to pass the character test. The Tribunal had to decide whether to nevertheless exercise the discretion in s 501(1), ie “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. That is an “intentionally broad” discretionary power: Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v EBD20 [2021] FCAFC 179; 287 FCR 581 at [28] (Perram, Thawley and Stewart JJ).

8    The Tribunal recognised that it was bound to apply Direction No 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, promulgated by the Minister under s 499 of the Act. The Tribunal’s reasons follow the structure of Direction No 110 dealing first with the mandatory “primary considerations” in para 8 of the direction and then the “other considerations” in para 9 of the direction.

9    The Tribunal’s relevant reasoning is most conveniently identified in relation to each ground of review.

Review ground 1: failing to assess risk in relation to each possible Ministerial intervention outcome

10    In relation to the primary consideration of “protection of the Australian community”, the Tribunal considered each of the sub-considerations identified in paras 8.1.1 and 8.1.2 of the direction. It concluded that there is a real risk of the applicant engaging in future criminal or other serious conduct and that risk is between low and moderate, but above low, and that should the applicant reoffend, there would be serious harm to others (at [105]).

11    The Tribunal then stated the following (at [106]):

For the purpose of para 8.1.2(c), the Tribunal is unable to determine the likely duration of the applicant’s intended stay as the duration of the BVE would depend on the outcome of the Ministerial request. The Tribunal does not consider that the purpose of the applicant’s intended stay affects the risk of harm.

12    Paragraph 8.1.2(2) of the direction provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively, various matters including:

(c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

13    By review ground 1, the applicant contends that the Tribunal failed to comply with para 8.1.2 in not assessing the risk to the Australian community by reference to the potential duration of the applicant’s visa in each realistically possible scenario. He submits that if the Tribunal was uncertain as to the duration of his intended stay (given that the duration of any BVE would depend on the outcome of the request for Ministerial intervention), the Tribunal was required to assess whether the risk of harm to the Australian community may be affected by the duration of his intended stay and the range of risk presented under different possible future states or Ministerial intervention outcomes.

14    The applicant submits with reference to Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73; 316 FCR 477 (DVRL) at [82]-[88] and [120]-[123] per Lenehan J (with whom Perry and Stellios JJ agreed), that Direction 110 requires a decision-maker, where the non-citizen will remain in the Australian community whichever outcome is adopted, to assess the risk associated with each realistically available outcome.

15    The applicant identifies two scenarios which might arise if he were granted a BVE, each of which he submits is realistic. Although put slightly differently by the applicant, those scenarios boil down to this. First, the Minister might refuse to lift the statutory bars to the applicant applying for a protection visa under ss 46A and 48A of the Act following which he would be removed from the country under s 198 of the Act, or the Minister might lift the statutory bars but his protection visa application might be refused resulting in his removal from the country. Second, the Minister might lift the statutory bars and his protection visa application might thereafter be successful resulting in him residing in the community indefinitely. Notably, both counterfactuals proceed on the basis of the same possible decision by the Tribunal, ie that the applicant is granted a BVE.

16    The applicant submits that if those two counterfactuals had been considered by the Tribunal, the potential risk that the applicant would pose to the Australian community would not necessarily have been the same. For example, he submits, if the second counterfactual was considered then certain protective factors against the risk of the applicant reoffending which would not be available to him under a BVE would be available to him under a protection visa such that the assessment of risk in the second scenario would be less than in the first.

17    In DVRL, the different counterfactuals arose from different possible decisions, one from the grant of the visa and the other from its refusal. The appellant was part of the NZYQ cohort, meaning that even if the visa in question was refused the non-citizen in question would not be removed from the country and would remain in the community albeit potentially under one or other form of restriction. It was because of those circumstances that “each of the available decisional outcomes involve[d] some degree of risk to the Australian community” (at [74], emphasis added), and it was the risk attendant on each that was required to be assessed (at [82] and [121]).

18    The present case is quite different. The applicant is in immigration detention and if he fails to be granted a BVE he will necessarily be removed from Australia pursuant to the duty on immigration officers under s 198(5) to remove an unlawful non-citizen as soon as reasonably practicable if the non-citizen is a detainee and has not applied for a substantive visa or the revocation of the cancellation of a substantive visa. If he is granted a BVE he will become a lawful non-citizen (as per s 13(1)) and will be released into the community for at least the duration of the BVE. This is the “usual case” referred to in DVRL (at [50]) which “will ordinarily be straightforward” (at [83]).

19    The Tribunal was required to assess and compare the risk between, on the one hand, the BVE being refused and, on the other, it being granted. Refusal would lead to continued detention and then removal of the applicant and therefore minimal risk of him reoffending in the Australian community. The Tribunal did not expressly consider that risk, but it can be taken to have assessed it at zero or near zero – that much is implicit in its reasoning. Against that, the BVE being granted would result in the risk of reoffending existing as assessed by the Tribunal but, as the Tribunal explained (at [106]), for a likely duration that the Tribunal was unable to determine. There is no error in that approach; nothing could have been gained by comparing the nature or extent of that risk depending on which of the two identified scenarios following the grant of a visa eventuated. DVRL does not say anything against that.

20    In those circumstances, review ground 1 fails.

Review grounds 2 and 3A: inconsistent temporal treatment of different considerations

21    The substance of grounds 2 and 3A, which can be taken together, is that the Tribunal’s decision is legally unreasonable. That is said to be because the Tribunal gave weight to the factors that counted against the grant of the BVE without discounting that weight on account of the inevitably temporary nature of the BVE but, in contrast, it discounted the weight to be given to factors that counted in favour of the grant of the BVE because of its temporary nature. It is said that that approach is inconsistent and illogical.

22    The factors that the Tribunal considered to weigh in favour of the grant of the BVE which the Tribunal discounted in that manner are the following.

23    First, the hardship that would be faced by the applicant in the event of a lengthy period in immigration detention following the refusal of a BVE was given “more limited weight” than it may have been “in circumstances where the visa in question was a permanent or at least a substantive visa” (at [162]-[164]).

24    Second, the Tribunal identified the impediments that would be faced by the applicant in the event that he was removed to Sri Lanka following the refusal of a BVE, namely his general and mental health due to his expressed fear of harm in Sri Lanka, and his ties to Australia including his family ties and the impact that removal would have on his family members (at [124] and [180]).

25    Third, the Tribunal identified prejudice to the best interests of his minor child in the event that he was refused a BVE and then removed from Australia (at [124] and [181]).

26    The Tribunal stated that it gave the second and third of those factors “more limited weight in circumstances where the BVE will not provide the Applicant with the right to reside in Australia permanently” (at [183]).

27    In contrast, the factors that weighed against the grant of the BVE were not discounted on account of the temporary nature of the visa. Those factors were the risk of the applicant reoffending and causing harm to the Australian community (at [107]) and the expectations of the Australian community (at [150]).

28    The applicant submits that where the Tribunal said that it gave “more limited weight” to the identified factors weighing in favour of the BVE being granted, it meant more limited weight than it gave to the factors that weighed against the BVE being granted. I do not think that that is correct. The Tribunal’s reasons are more naturally understood as saying that the Tribunal gave more limited weight to those factors than it would have done had the visa in question been a long-term or substantive visa (as it made express at [164]). Nevertheless, the applicant’s overall submission remains, ie that it was inconsistent and illogical to discount the positive factors in that way but not the negative factors.

29    It is common ground that there is a high bar to establishing legal unreasonableness. There is no need to survey the case law. It is sufficient to recognise, with reference to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541, that the test for unreasonableness is “necessarily stringent” because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion (at [11] per Kiefel CJ), a decision-maker will be found to have abused their statutory power if their decision “lacks an evidence and intelligible justification” including where the decision “is one which no reasonable person could have arrived at” (at [10] pr Kiefel CJ), or if their decision “does not fall within the range of possible outcomes which are defensible in respect of the facts and law” (at [82] per Nettle and Gordon JJ). Necessarily, determining whether this has occurred will depend on the facts and statutory context of each individual case (at [84] per Nettle and Gordon JJ). The standard of legal reasonableness can be expressed as “the minimum to be expected of any reasonable repository of the power” in the circumstances of the impugned decision or action (at [52] per Gageler J).

30    In my judgement, to the extent that there is any inconsistency in the treatment of positive and negative factors, it does not rise to the level of legal unreasonableness. There are a few reasons for that.

31    First, what is at issue here is the weight that the Tribunal attached to different factors, a matter that is within the “area of decisional freedom” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] per French CJ) of the decision-maker. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41 per Mason J.

32    Second, the factors in respect of which the Tribunal discounted the weight are factors that have temporality at their heart, ie ties to Australia including family ties, relationship with a minor and time in detention pending removal. There is nothing illogical in discounting the weight to be given to such factors on account of the visa in question being temporary and likely having a short duration (in the case of the first two) or the length of detention as compared to a temporary reprieve in the community. In each case, the grant of the visa would not of itself give the applicant the right to remain in the community in the long term such that his ties to Australia, the relationship with his son and his freedom from detention may in any event all be broken or may end – the grant of the visa would not of itself protect against any of those outcomes.

33    In contrast, in the Tribunal’s assessment there would be an unacceptable risk to the Australian community if the applicant were released from detention regardless of whether that turned out to be for a short period or a lengthy period, but the refusal of the BVE would protect against that risk. Reasonable minds may differ on that, but it was a matter for the Tribunal. For the Court to intervene on this ground would be to impermissibly enter upon the merits of the administrative decision: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36.

34    There is in any event another answer to grounds 2 and 3A. It arises from the Tribunal’s statement (at [186]) that even if it gave greater weight to the positive factors (ie such that they were no longer discounted), it would still determine that the protection of the community and expectations of the community would still be given greater weight than the positive factors. Thus, the Tribunal considered the alternative scenario where it had not discounted the weight of certain of the positive factors, and decided that it would still refuse the BVE. That means that any error with regard to the discounting of weight would not have made a difference to the ultimate decision with the result that the error was not material and was therefore not jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [14]-[16].

35    Review grounds 2 and 3A accordingly fail.

Review ground 5: not necessarily being immediately removed

36    Review ground 5 focusses on this aspect of the Tribunal’s reasoning in relation to the extent of the impediments that would be faced by the applicant if he were removed from Australia (at [172]):

As noted above, the Tribunal considers it relevant that the visa in question, the Bridging E visa, would not enable the Applicant to remain in Australia, nor would the refusal of that visa necessarily result in his immediate removal from Australia while he has an outstanding application for Ministerial intervention. It is relevant that, unless the Applicant is able to apply for a substantive visa and is granted one, the applicant may be expected to depart Australia whether or not he is presently granted the BVE.

(Emphasis in the original.)

37    The applicant submits that the statement that refusal of the visa would not necessarily result in the applicant’s immediate removal from Australia is contrary to the law, ie it amounts to an error of law. He refers to ss 197E(1) – (3) which would have the effect that if the applicant were denied the BVE then there would be an obligation on immigration officers under s 198(1) to remove the applicant, as an unlawful non-citizen (as per s 14(1)) to his home country as soon as reasonably practicable.

38    The applicant refers to s 197E(5) which provides that if the Minister decides to consider whether to exercise a Ministerial intervention power in relation to an unlawful non-citizen, s 198 does not require or authorise an officer to remove the non-citizen from Australia during the period covered by sub-s (6). Subsection (6) makes provision for a period of six months, subject to certain exceptions which are not presently relevant, from the time that the Minister decides to consider a request for Ministerial intervention.

39    The Tribunal’s decision was two months after the request for Ministerial intervention had been made and before any indication had been given on the decision, ie there was no decision by the Minister at that time that the applicant’s request would be considered. The applicant thus submits that the denial of the BVE would have resulted in the immediate enlivening of the obligation under s 198 to remove him, and that the Tribunal erred in not recognising that.

40    The applicant’s submission about the effect of ss 197E(1) – (3) is correct, however the way in which he would have the Tribunal’s reasons understood is not. In the paragraph to which the applicant refers (ie [172]), the Tribunal is not saying that the applicant will not be removed from the country if he is denied the BVE, but only that he will not “necessarily” be “immediately” so removed. That is because removal will inevitably not be immediate – these things take time. In the period between the decision to deny the BVE and actual removal, the possibility existed that the Minister would decide to consider the Ministerial intervention request which would then by the operation of s 197E(5) suspend the duty under s 198(1) to remove the applicant. Also, it was realistically possible that the Minister would lift the impediments to the applicant applying for a protection visa which would then by the operation of s 198(5A) further suspend the duty to remove under s 198(1). The Tribunal’s statement about the applicant not necessarily being removed immediately is thus accurate.

41    In the result, ground 5 fails.

Disposition

42    For those reasons, the proceeding should be dismissed. The parties accept that the costs should follow the result.

Associate:

Dated:    20 October 2026