Federal Court of Australia

ZNKS v Minister for Immigration and Citizenship [2026] FCA 1645

ORDERS

THE COURT ORDERS THAT:

1.    The listing of the hearing of the appeal on 2 November 2026 be vacated and the appeal be adjourned to a date to be fixed after the hearing and determination of the application for special leave to appeal to the High Court of Australia in VRRQ v Minister for Immigration and Multicultural Affairs (M100/2026) and, if that application is granted, the hearing and determination of the appeal in that matter.

2.    The costs of the Appellant’s adjournment application are reserved.

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

REASONS FOR JUDGMENT

BENNETT J:

introduction

1    On 27 April 2026, judgment was delivered in ZNKS v Minister for Immigration and Citizenship [2026] FCA 522. The Primary Judge dismissed an application for judicial review of the decision of the Administrative Review Tribunal (Tribunal) to affirm a decision of a delegate of the Minister for Immigration and Citizenship (Minister) to refuse to grant a protection visa on the basis he failed to satisfy ss 36(1C) and 36(2C)(b) of the Migration Act 1958 (Cth).

background

2    Two grounds of review were considered by the Primary Judge, and the amended originating application was dismissed. On 28 April 2026, a notice of appeal was filed. The Appellant (the Applicant for the purposes of the present application) now relies on a single ground of appeal, articulated as follows:

1.    The primary judge erred in failing to find that the Tribunal misunderstood the evidence and representation relied on by the appellant, and/or that the Tribunal reasoned in a way that was illogical in relation to the Tribunal’s assessment of risk.

Particulars

a.    A key part of the appellant’s case before the Tribunal was that the fact he would remain on the non-public sex offender registry reduced the risk of reoffending that may otherwise apply.

b.    The Tribunal at [101] misunderstood the evidence that was before it in support of that contention, by relying on the part of the evidence that related to public sex offender registries and deterrence of persons from offending for the first time, neither of which applied to the appellant, affecting the degree to which the assessment of risk was reduced.

c.    The reasoning of the Tribunal affected its assessment of the risk the appellant may reoffend, which was central to the Tribunal’s conclusion that the appellant posed a danger to the community.

d.    The primary judge at J [36] erred in finding that the Tribunal’s reasoning on this issue could not give rise to jurisdictional error for irrational reasoning because it could not be characterised as “a finding of a ‘critical fact’ or jurisdictional fact of the kind required to establish jurisdictional error” because it “did not supply the foundation for the Tribunal’s conclusion as to risk”.

3    Part of the error alleged is that the Tribunal reasoned in a way that was illogical in relation to the Tribunal’s assessment of risk. The Applicant argues that the learned Primary Judge fell into error by failing to accept the submission, in effect, that the Tribunal misunderstood certain submissions and evidence about the deterrent effect of remaining on the sex offender registry for life and the consequences that would have on the risk of reoffending.

4    Furthermore, it is said that the Primary Judge erred in terms of her approach as to the requirements for establishing jurisdictional error. In short, the Applicant alleges that the Second Respondent misunderstood a research paper relied upon by the Applicant, entitled “What impact do public sex offender registries have on community safety?”, that was published by the Australian Institute of Criminology (the AIC Paper). The Applicant asserts that the Primary Judge considered that to show illogicality, irrationality or unreasonableness in the Tribunal’s reasoning, the Applicant had to demonstrate the finding in question was a “critical fact” in the review. Her Honour then found (at [36]) that any misreading of the AIC Paper “did not supply the foundation of the Tribunal’s conclusion as to risk” and could not be characterised as a “critical fact” or a jurisdictional fact of a kind required to establish jurisdictional error.

5    The Applicant argues that the “critical fact” approach to the analysis that was adopted by the Primary Judge was recently the subject of a Full Court decision in VRRQ v Minister for Immigration and Multicultural Affairs [2026] FCAFC 117 (VRRQ) from which Special Leave to appeal has been sought. The Full Court decision has a powerful dissent on the question of “critical fact” approach, which is reflected in the Special Leave application, as annexed to the affidavit filed in this matter on behalf of the Applicant in support of the present application.

6    The Applicant argues that this case should be adjourned pending determination of the Special Leave application (or more accurately any appeal that follows).

relevant principles

7    The principles relevant to an adjournment application of this kind were set out recently in Assistant Minister for Immigration v Hood (Adjournment) [2026] FCAFC 98; 317 FCR 178 (Hood). In particular:

(1)    Each case must turn on its own facts (Hood at [9] (Wigney, Younan and Lenehan JJ)).

(2)    As a general principle, the Court should decide an appeal on the basis of the law as it currently is, rather than speculate about possible changes to the law (Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11 at [49] (Spigelman CJ, Beazley and Tobias JJA agreeing)).

(3)    The Court should proceed to hear an appeal despite a special leave application, unless to refuse the adjournment would prejudice the Applicant “to the point of denying justice” (Hood at [7] (Wigney, Younan and Lenehan JJ), citing City of Sydney Council v Satara [2007] NSWCA 148 at [31] (McColl JA, Beazley and Tobias JJA agreeing)).

(4)    Relevant considerations will include:

(a)    prejudice likely to be suffered by the party seeking the adjournment if it is not granted;

(b)    whether the application for Special Leave has been listed for hearing;

(c)    the extent to which the outcome of the Special Leave application is likely to affect the outcome of the appeal (noting that in Satara that question was debatable);

(d)    the nature of the appeal or hearing the subject of the adjournment application; and

(e)    any prejudice likely to be suffered by the party resisting the adjournment.

(5)    It may be relevant to consider the prospects of any Special Leave application (Hood at [9] (Wigney, Younan and Lenehan JJ), citing 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 at [2]-[9] (Kirk JA), noting the possible difficulties in making that assessment were canvassed by Kirk JA). To the extent such an exercise can be undertaken, it is likely to be an impressionistic exercise (Hood at [11] (Wigney, Younan and Lenehan JJ)).

8    In Hood, there could be “no doubt whatsoever” (at [10]) that the outcome of an appeal from Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19; 315 FCR 207 would have significant implications for the appeal. In that case, the very question that arose was whether the power in question was subject to an implied temporal limitation. It was an issue that had been identified in a range of first instance cases as unsettled, and there was no dispute that XMBQ would be the first case to settle the question. There was likewise no dispute that the issue had not been the subject of any High Court authority in the past.

9    This case is somewhat different. The First Respondent identifies a number of matters which it says are relevant. In particular:

(1)    It argues that VRRQ is not the only Full Court decision to adopt a “critical fact” analysis, arguing that XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; 305 FCR 349 (at [64] (Markovic, Cheeseman and Horan JJ)) also does so, as does EUD24 v Minister For Immigration and Citizenship [2025] FCAFC 128; 311 FCR 155 (Hill J, albeit as a single judge). However, the First Respondent appropriately accepted that the analysis in XRZG was obiter dicta, and that the comments of Hill J in EUD24 did not constitute or reflect the reasons of the Full Court. The Minister accepted that the issue of the “critical fact” analysis was an issue that appears to be the subject of conflicting views in this Court.

(2)    There have been issues on foot with the Applicant’s visa status since 2021, when a previous visa was cancelled, and the First Respondent argues that it is important to finally determine the matter. However, the Minister accepts that the correct measure of the effluxion of time in this case is concerned with the validity of the present visa, an issue which has only been ongoing since 2025 which, on any view, is a more constrained timeframe.

analysis

10    In this case, the Primary Judge concluded that the “critical fact analysis” was the operative test. The Applicant asserts that her Honour applied that test by considering the Applicant’s assertion “at its highest” and reasoning that because the AIC Paper did not meet that threshold, then the issue went no further and the application was dismissed. The First Respondent faintly argued that her Honour had implicitly found, as a matter of fact, that there was no lack of rationality or logic in the Tribunal’s use of the AIC Paper and that, in any event, it did not meet the “critical fact” threshold. It is not necessary for me to determine that question at this stage, nor is it appropriate to do so.

11    In the course of the hearing, a number of matters became clear.

(1)    The Minister accepted that the present application was one which was “finely balanced” and it is appropriate to consider the matter in that light.

(2)    The Minister accepted that there was a degree of divergence of opinion in the Court, although I accept that there is dispute as to the extent of that divergence. That divergence is best encapsulated in the dissent of Lenehan J in VRRQ (at [73]) as follows:

A decision-maker makes findings of fact involving “extreme” illogicality or irrationality. There was a realistic possibility that the decision could have been different had those errors not been made. Is that sufficient to conclude that the decision involves jurisdictional error? Or is there some further requirement that the relevant findings be “critical” to that decision? Those questions, which require consideration of important matters of fundamental principle, are not the subject of clear answers dictated by High Court or intermediate appellate authority. In my view, there is no additional requirement that the relevant findings be “critical”, and the application of that (vague and inherently subjective) criterion or test risks the Court entering into impermissible merits review. The doubts of the primary judge as to that issue were well founded.

(3)    The Minister accepted that if special leave had been granted, it would be appropriate to adjourn the matter pending determination of the High Court application.

12    In this context, I have considered the relevant factors.

The centrality of the issue on the appeal

13    It is clear in this case that the Full Court will be called upon to decide the question of the “critical fact analysis”. In reaching that conclusion, I take into account that the Minister maintains the argument that her Honour found the document was logically taken into account as a matter of necessary implication. In addition, I accept it might also be argued that a lower threshold applied to the AIC Paper and that the AIC Paper would not have met that lower threshold of materiality suggested by Lenehan J. However, it seems that the distinction is squarely raised and will need to be determined. It is not only one of a number of arguments or pathways that will be part of the Full Court’s analysis, it is squarely raised and will have to be determined, even though there might be other arguments to be deployed and considered.

14    This case was said to be more clear on the issue of centrality than Hood, because this case concerns only one ground of appeal which is centrally concerned with the critical fact analysis, whereas Hood included two grounds of appeal, one of which was not impacted by the proposed Special Leave. Moreover, XMBQ concerned a unanimous Full Court decision, while VRRQ involved a dissent. I do not consider much turns on distinctions of this kind. In VRRQ, the Primary Judge agreed with the majority, whereas in XMBQ, the primary judge was overturned by the Full Court. On any view, a controversy was identified, and in that respect the cases are somewhat similar, although I consider that Hood involved the identification of a clearer dispute as a matter of principle that needed to be resolved by the High Court and ultimately was.

15    Nonetheless, I consider that the issue identified in the Special Leave application in VRRQ is important to the disposition of this appeal and will arise in the course of the analysis.

Likelihood of Special Leave

16    Many authorities have identified the difficulty involved in speculating as to the likelihood of Special Leave and this case is no different. It is simply not possible to speculate about this beyond noting the Minister’s acceptance that there is a degree of uncertainty as to the applicable principle. However, I do not consider that takes the position much further. To the extent appropriate to comment, the likelihood of Special Leave appears somewhat less likely than what occurred in XMBQ, but it is simply not possible to make determinations of matters of degree in considering that question.

Impact if Special Leave is granted

17    There is an argument that even if Special Leave is granted in VRRQ, it may not alter the outcome of the present appeal. Put another way, it is possible that the Primary Judge was incorrect in her application of the critical fact analysis but correct in the orders ultimately made. However, given the Minister’s frank acceptance that if Special Leave were granted then an adjournment would be appropriate, it appears to follow, as a matter of logic, that if Special Leave were granted, the impact could be significant, and I proceed on that basis.

Prejudice to the Applicant and First Respondent

18    The Minister’s primary interest is, no doubt, in the lawful administration of the Migration Act. I accept that there is no significant delay by the Applicant in this case, and that the issue of the impact of Special Leave and the critical fact analysis has been raised in a way that is as timely as possible. I therefore accept that there is minimal or no prejudice to the Minister if an adjournment is granted. It is presently listed on a one day estimate, and the difficulty in finding an alternative time for this appeal can be contrasted with hearings or appeals of a significantly longer duration. In that sense, this case can be contrasted with Satara, as identified in Hood at [12] (Wigney, Younan and Lenehan JJ).

19    As to the Applicant’s prejudice, the Applicant asserts that losing the sole ground of appeal would be a prejudice to the matter pending possible High Court determination of the “critical fact analysis”. It is apparent that the Applicant also seeks to argue that if her Honour’s critical fact analysis were correct, her Honour nonetheless erred in concluding that it was not met in this case. Nonetheless, as a practical matter, I accept that there is prejudice to the Applicant for the reasons identified in his outline of submissions. In particular, having regard to the centrality of the issue the subject of the Special Leave application to this appeal, the Applicant stands in a less favourable position, having to proceed on the current basis, where that question may be shortly determined by the High Court. While I accept it is open to the Applicant to argue that the Full Court decision in VRRQ was wrongly decided, that presents a more significant hurdle than if VRRQ were not operative by reason of being overturned.

Conclusion

20    I do not consider this is an easy application. I agree with the Minister that it is finely balanced.

21    Generally speaking, the law must proceed as it is. The administration of justice requires matters to be heard and determined without awaiting changes to the law or speculating about which matters the High Court may or may not give Special Leave to. However, having carefully considered the circumstances of this case, including the Minister’s acceptance that the matter is finely balanced and that an adjournment would have been appropriate if Special Leave had been granted, in combination with the conclusion that there is an issue of dispute as to the correct principle in this Court, I have formed the view that the balance tips in favour of an adjournment, and I will make orders accordingly.

22    These reasons were delivered ex tempore and were revised in accordance with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]-[31] (Steward J, Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).

Associate:     

Dated:    2 November 2026