Federal Court of Australia

Akbari v Minister for Immigration and Citizenship [2026] FCA 1695

ORDERS

THE COURT ORDERS THAT:

1.    The third amended application for review filed on 3 October 2025 be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    By amended application filed on 3 October 2025, pursuant to s 476A of the Migration Act 1958 (Cth), the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 6 February 2025 (Tribunal Decision or T). The Tribunal Decision affirmed a decision of a delegate of the first respondent (Minister) under s 501CA(4) of the Migration Act not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa.

2    The visa was cancelled on 20 September 2023 under s 501(3A) of the Migration Act, on the basis that a delegate of the Minister was satisfied that the applicant did not pass the character test (as defined in s 501) because of the operation of s 501(6)(a) (substantial criminal record), on the basis of s 501(7)(c). The applicant had been convicted in the Local Court of New South Wales of assault occasioning actual bodily harm (two counts), common assault, armed with intent to commit an indictable offence, and affray, for which he was sentenced to an aggregate term of imprisonment of 16 months.

3    At the hearing of this matter on 1 October 2025, leave was granted to rely on a ‘Third Amended Application’ dated 30 August 2025 (in fact, the second iteration of the originating application filed on 11 March 2025). This application reduced and revised the grounds of review. The grant of leave was unopposed.

FACTUAL BACKGROUND

4    There was no serious dispute between the parties as to the facts leading up to the Tribunal Decision, which are outlined therein and summarised where relevant below.

5    The applicant was born in Afghanistan on 7 January 2004, moved to Pakistan in or around 2008 or 2009, and arrived in Australia in 2014 with his mother and nine siblings to join his father. The applicant’s father travelled to Australia in or around 2006 and is now an Australian citizen. The applicant initially travelled to Australia on a Global Special Humanitarian (Class XB) (Subclass 202) visa.

6    The applicant claims to have experienced a traumatic upbringing in Afghanistan, and to have suffered bullying and discrimination in Australia. He did not receive a formal education in Afghanistan and claims to have left school in Australia in year nine due to bullying. He has maintained employment intermittently, and attributes his lack of continuous employment to the effects of the COVID-19 pandemic.

7    According to the applicant’s sister, in or around 2018, the applicant started to show signs of mental illness. On 15 August 2019, he was taken to Riverview Mental Health Unit, Cumberland Hospital, following a conflict with family members. On 26 August 2019, he was transferred to the Redbank Unit of Westmead Hospital, where he was managed for post-traumatic stress disorder (PTSD). He was released from Westmead Redbank House on 3 September 2019. On 3 December 2019, he was taken to Cumberland Hospital Health Unit, having been detained under the Mental Health Act 2007 (NSW) after being aggressive towards his sister. The applicant had failed to take the medication prescribed for him and was diagnosed with adjustment disorder with disturbance of conduct and PTSD.

8    On several occasions between 22 February 2022 and 13 August 2022, the applicant’s behaviour attracted charges and a conviction for violent offences. Following his arrest on 13 August 2022, the applicant was held in custody on remand. While in custody, the applicant assaulted other prisoners, leading to an aggregate sentence of 16 months’ imprisonment.

9    On 20 September 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act. On 14 November 2023, the applicant was released from custody and transferred into immigration detention.

10    On 18 December 2023, the applicant made representations seeking revocation of the mandatory cancellation.

11    On 13 November 2024, the delegate decided not to revoke the cancellation pursuant to s 501CA(4) of the Migration Act.

12    On 20 November 2024, the applicant applied to the Tribunal for review of the delegate’s decision.

13    By an email dated 28 January 2025, the Minister’s solicitor advised the Tribunal that on 21 January 2025, the applicant was transferred to Liverpool Hospital, having presented with psychotic symptoms. The applicant was then admitted to the Campbelltown Mental Health Unit.

14    The hearing before the Tribunal took place on 29 and 30 January 2025. The applicant, who was unavailable to attend the hearing as he had not been discharged from hospital, was represented by Mr Poynder of Counsel, instructed by Ms Akanda of Legal Aid NSW.

15    On 6 February 2025, the Tribunal affirmed the delegate’s decision (not to revoke the cancellation of the visa), as the applicant failed the character test pursuant to s 501CA(4)(b)(i) of the Migration Act, and the Tribunal was not satisfied that there was another reason to revoke the cancellation decision.

16    In its decision, the Tribunal noted the following as to the conduct of the hearing (at T [23]– [24]):

… the applicant has been represented in the proceeding. At the hearing the applicant’s counsel stated to the Tribunal that the applicant had provided clear instructions to his legal representatives at a time when he had capacity to do so, in relation to both the evidence before the Tribunal and the conduct of the hearing.

In support of his application, the applicant provided two statements dated 29 May 2024 and 2 October 2024. In circumstances where the applicant was legally represented at the hearing and based on the applicant’s counsel’s submission and the statements provided by the applicant, the Tribunal concluded that it was appropriate to continue the hearing in the absence of the applicant.

LEGISLATIVE FRAMEWORK

17    The applicant’s visa was initially cancelled pursuant to s 501(3A) of the Migration Act, which is to be read in conjunction with s 501(6) and (7), and relevantly provides:

501    Refusal or cancellation of visa on character grounds

…

Decision of Minister—natural justice does not apply

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more;

…

18    The delegate’s decision of 13 November 2024 was to refuse to revoke the cancellation pursuant to s 501CA(4) of the Migration Act, which provides:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

…

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

19    Section 499(2A) of the Migration Act requires the Tribunal to comply with directions given by the Minister under s 499(1):

499    Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.…

(2A)    A person or body must comply with a direction under subsection (1).

(3)    The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)    Subsection (1) does not limit subsection 496(1A).

…

20    Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, a direction given under s 499 of the Migration Act, relevantly provides:

8.1.2.    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen reoffending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

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.

…

8.3.    The strength, nature and duration of ties to Australia

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

GROUNDS OF REVIEW

21    The applicant claims that the Tribunal committed jurisdictional error on the following bases:

(1)    the applicant was denied procedural fairness by way of the Tribunal holding the hearing in his absence (Ground 1);

(2)    the Tribunal engaged in a legally unreasonable process of reasoning in its application of paragraph 8.3(2) of Direction 110, in that it failed to “properly consider significant evidence” and “overlooked critical evidence” (Ground 2);

(3)    the Tribunal:

(a)    acted unreasonably by failing to consider “the applicant’s unique factual circumstances in their proper context”, and discounting the applicant’s family’s capacity and willingness to support the applicant (Ground 3(a)); and

(b)    misapplied paragraphs 8.1.2 (Ground 3(b)) and 8.3(1) (Ground 3(c)) of Direction 110

(together, Ground 3).

Ground 1 – Denial of procedural fairness

Was the applicant denied procedural fairness by reason of the Tribunal proceeding to hear his application in his absence?

Applicant’s claim

22    The crux of the applicant’s claim is that he was denied procedural fairness as the Tribunal hearing was held in his absence, the applicant having been transferred to Liverpool Hospital nine days prior to the hearing. As a result of his absence, the applicant claims that he was unable to give evidence at the hearing, to instruct his counsel at the time of the hearing, and to make his own submissions where he considered that necessary. Such procedural fairness is said to arise both from the common law and from the Administrative Review Tribunal Act 2024 (Cth), ss 9(c), 51(1), 55(1)(a) and (1)(c).

23    The Tribunal relied on the applicant’s counsel’s statement that “the applicant had provided clear instructions to his legal representatives at a time when he had capacity to do so”: at T [23]–[24]. The applicant submits that the Tribunal ignored the concerns of counsel for the Minister and failed to enquire about the instructions received by the applicant’s counsel (i.e., a failure in its inquisitorial function), “despite the inherent difficulties” of the proposition that the applicant had given “clear instructions” in circumstances where he was mentally ill at the time of the hearing.

24    Relevant portions of the exchange between the Tribunal Member; the applicant’s representative, Mr Poynder; and counsel for the Minister, Mr Flick, are extracted as follows from the transcript of the hearing:

MEMBER: … Mr Poynder, I had some correspondence this morning that the Applicant is indisposed and won’t be with us for the hearing.

POYNDER: Yes, so the – the – our position is this. We’re confident that we obtained instructions from the Applicant while he was lucid in relation to the way this matter is to proceed and in relation to our position. So, we are in – we are in a position where we can proceed without the Applicant and – and of course with the time limit on these cases, it’s impractical to adjourn the – the matter. I mean it could be heard next week, but we’re here now today and I – we don’t have any information that the Applicant’s going to be better next week. So that’s our situation, that we can proceed this morning, but it will involve some consequences in terms of admissions to be made and documentation and so forth, but I can come to that in a minute or when the Tribunal feels it’s convenient just how we wish to approach the evidence in this case.

MEMBER: Do you have anything to say?

FLICK: Member, there is a difficulty that is appropriate for the Tribunal to address and to be satisfied and it can do that based on instructions or submissions from Mr Poynder, but the concern that we wish to ventilate is that the Applicant is required as a matter of procedural fairness to have an opportunity to participate in the proceeding and it may be, in certain circumstances if the Tribunal is put on notice as to a concern about capacity, that the Tribunal may take further steps to satisfy itself that the Applicant has the requisite capacity or has the ability to participate in the proceeding. What Mr Poynder has just said goes some way to addressing those concerns, but the issue as we see it is that a Applicant’s ability to participate in a proceeding through their lawyers depends on the Applicant having had the requisite capacity at the time to provide those instructions and in this case, what Mr Poynder has said is that the Applicant provided instructions while lucid. The question we have is whether or not the Applicant – whether or not the Tribunal can be satisfied that the Applicant has the opportunity to participate in the sense of giving instructions to the lawyers to represent him without him participating in the proceedings. That may be in a number of ways, let me just refer the Tribunal to the decision of the High Court.

MEMBER: In practical considerations here though is that I’ve got to –

FLICK: Quite.

MEMBER: (Inaudible) In this matter --

FLICK: Quite right.

MEMBER: So, there’s no opportunity to – in the normal course of events, I would stand it down and come back next month or give an opportunity for Mr Poynder to give us an idea as to when the Applicant would be in a position. There was a – a note that was sent this morning about applying to – for a litigation supporter under section 67. I understand under the new legislation there’s no protocol for that to happen and so that may not be a practical thing. The issue in – the – the circumstances in this case though is that you – you correct me if I’m wrong both sides, Mr Poynder and – but the factual circumstances as to the Applicant’s background is pretty well known and has had a pretty well-worn history. The question here is really, what sort of support is available, whether in mental health is going to preclude him from – well will be an issue in terms of – to his country perhaps, or seeking help, whether help has been sought and what type of help and who’s going to look after him and – and what sort of protections are in place as far as the community is concerned. They seem to be things that give evidence in relation to.

FLICK: That is – that is so Member. There is one further matter and I raise this as a matter that’s been specifically put to the Tribunal on the Applicant’s (inaudible), which is that much will also depend, we say a significant point in this case is the Applicant’s willingness and understanding of the need to continue treatment and his preparedness to undertake that treatment, which is the precursor to all of the issues that the Tribunal has raised. The Applicant here will be deprived of the opportunity to give evidence on those points and as far as I can see from the materials before the Tribunal, there is no evidence from the Applicant by way of statement that addresses those issues. We do not –

MEMBER: Only what was in the – sorry – only what was in the Magistrates Court.

FLICK: Quite Senior Member, but we – we don’t take a position on whether or not it will be appropriate for the Tribunal to proceed without the Applicant here, rather we just wish to ventilate this position to ensure that the Tribunal had the opportunity to address it with Mr Poynder.

MEMBER: Well, I don’t see any way around it, Mr Poynder, but to push on. I understand what is being put, but it seems to me that we should proceed if you’re satisfied you have received instructions from the Applicant. Those instructions are clear, then there doesn’t seem to be any hinderance in – in proceeding today.

POYNDER: Yes, I agree. …

…

FLICK: Quite, I – I should just flag at this stage that I think that the submission made in a sense reverses the onus to a degree. The Applicant has pleaded guilty to detailed Fact Sheets, there is detailed material I will submit to the Court on that. If the Applicant wishes to proceed on instructions without having the opportunity to respond to those matters, then it’s for the Applicant to do so with the benefit of his Counsel and legal team.

MEMBER: We’ll cross those issues when we come to them.

25    The applicant submits that his oral evidence was indispensable to the Tribunal’s reasoning, given the question of his credibility, and his insight into his offences and personal circumstances. In that regard, the applicant points to the examination of his sister by counsel for the Minister about matters adverse to the applicant (such as whether the applicant threatened his father, and his alleged refusal to take medication), on which the applicant’s evidence was said to be “crucial”. This is particularly so, the applicant argues, as the written statements relied upon by the Tribunal (dated 29 May 2024 and 2 October 2024) were not recent. The applicant submits that to properly assess his mental health, which is a “key consideration” in relation to his offending, the Tribunal was required to see him in person and engage with him directly.

26    The applicant submits that the Tribunal should have made up its own mind on the issue of procedural fairness – i.e., it was not bound by the submissions of the applicant’s counsel. The applicant cites Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [62] per French CJ, Kiefel, Bell and Keane JJ, where the Court held that an approach which imports “notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading” is inappropriate for the Tribunal’s review.

27    The applicant claims that the authority of his counsel at the Tribunal hearing depended on the applicant’s mental capacity, as a “lawyer’s authority can only ever occupy that range which is marked out by the client’s mental capacity”: BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 282 CLR 253 at [99] per Jagot and Beech-Jones JJ, citing Goddard Elliott v Fritsch [2012] VSC 87 at [550] per Bell J.

Minister’s response

28    There is no contest that the Tribunal was required to afford the applicant procedural fairness, which in the Minister’s submission required that each party be given a reasonable opportunity to present their case and answer the case made against them: Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102 at [55] per Rangiah, Jackson and Meagher JJ.

29    The Minister submits that the content of the duty to afford procedural fairness in circumstances where an applicant is, by reason of physical or mental unfitness, unable to appear at a hearing, is not unqualified – an applicant must establish that their condition prevented them from presenting their case to the Tribunal, and it is insufficient to show simply that their condition may have deprived them of the ability to put their case to best advantage: BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116 at [43] per Kenny, McKerracher and White JJ.

30    There is an antecedent question that remains unanswered by the evidence: viz., whether the applicant wished to attend the hearing in person. The applicant did not present any evidence to this effect, nor to demonstrate that his counsel did not have authority to proceed on the instructions as conveyed by counsel at the hearing.

31    The Minister points to the central role of the applicant’s counsel and solicitors in the Tribunal proceeding, including the preparation of his application, Statement of Facts Issues and Contentions (SFIC) and tender bundles by, or with the assistance of, those representatives. The Minister submits that those representatives informed the Tribunal unequivocally that the applicant’s decision was to proceed with the hearing in his absence, and that they had received instructions enabling them to do so. In the circumstances, the applicant was afforded a reasonable opportunity to present his case.

32    The Minister submits that this is sufficient to dispose of Ground 1, but makes the following further submissions:

(1)    The Tribunal confirmed that the applicant had provided instructions, and that his legal representatives were satisfied that he was lucid when they were provided.

(2)    The applicant’s contention that the Tribunal fell into error by failing to make further enquiries as to the instructions is contrary to principle, in that procedural fairness does not require a decision-maker to conduct “a threshold enquiry … to confirm … capacity”: Karan v Minister for Home Affairs [2019] FCAFC 139 at [23] per Rares, Griffiths and Burley JJ.

(3)    The Tribunal Decision did not turn on the applicant’s credibility, and the applicant’s personal circumstances were objective matters already in evidence. There is no suggestion that the applicant could have given oral evidence that would have borne relevantly on those matters.

33    The Minister concedes that the applicant’s willingness to take his medication (as adverted to by the applicant at [25] above) did bear on the outcome of the Tribunal Decision, and makes the following submissions:

(1)    The Tribunal had before it extensive evidence comprising the applicant’s medical history and files, which recorded his refusals or unwillingness to take his medication, and which is “highly relevant” to the question of practical injustice: Karan at [27].

(2)    The applicant’s evidence, including the oral evidence of his sister, and the report of his witness, Dr Kwok, referred to his refusal to take his medication.

(3)    The issue was raised in the context of procedural fairness at the outset of the hearing. The Minister noted that the applicant’s willingness and understanding of the need to continue his treatment would be raised as a matter bearing on the Tribunal’s decision. The applicant’s legal representative responded by confirming that the hearing ought to proceed in the applicant’s absence, and submitted that the only matter which may have been relevant to his inability to give oral evidence concerned his criminal history.

(4)    Even if the applicant’s oral evidence may, or would, have been relevant to an issue in dispute, there would be no denial of procedural fairness as he had already been given a reasonable opportunity to present his case.

34    The Minister submits that the duty to afford procedural fairness is ultimately concerned with the avoidance of practical injustice: Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 214 at [62] per Jagot J, citing Karan at [33]. Therefore, it is said that this is not a matter where the applicant was denied an opportunity to be heard; rather the applicant elected to proceed, through his legal representatives. The suggestion that procedural fairness required the Tribunal to assess the applicant in person is unsupported by authority: see WZARH v Minister for Immigration and Border Protection (2014) 230 FCR 130 at [9]–[14] per Flick and Gleeson JJ.

Consideration

35    The applicant had legal representation before the Tribunal. That representative indicated to the Tribunal that he had obtained instructions (at a point in time when the applicant was lucid) for the Tribunal hearing to proceed without him. As previously indicated, there is no evidence before me that the applicant did not provide the instructions that his counsel said were provided, in the circumstances in which they were said to be provided. In determining to proceed in accordance with those instructions, the Tribunal had the benefit of submissions from counsel for the Minister regarding the significance of the applicant’s absence from the hearing. Having heard those submissions, the Tribunal determined to proceed. The applicant’s counsel agreed with that course of action.

36    The applicant now maintains that this course denied him procedural fairness. I do not accept that submission. I accept that the applicant had been given a reasonable opportunity to present his case up until the hearing, and, with the benefit of legal representation, at the hearing.

37    Procedural fairness requires that each party be informed of the case against them and be given a reasonable opportunity to present their case and answer the case made against them: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ; Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552–553 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

38    This principle is enshrined in the statutory statement of procedural fairness in s 55(1) of the Tribunal Act:

55    Right to present case

General Rule

(1)    The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

(a)    present the party’s case; and

(b)    access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

(c)     make submissions and adduce evidence.

39    Here, the question that arises is whether this “reasonable opportunity” required the applicant to be present at the hearing in the circumstances of this case. In WZARH, in the context of an application for refugee status, Flick and Gleeson JJ considered that no support should be given to “any broadly expressed conclusion that all applicants for refugee status are entitled to an oral hearing in all circumstances”: at [15]. It is a determination to be made depending on the facts and circumstances of each individual case, with no one factor providing any infallible guide to when an oral hearing may be required to ensure that an affected person has been given a “fair” opportunity to be heard: WZARH at [16].

40    The decision to proceed is not itself an error. That is, procedural fairness does not universally require an oral hearing before an administrative decision is made: WZARH at [9] per Flick and Gleeson JJ, citing Re Minister for Immigration and Multicultural Affairs; Ex parte P T (2001) 75 ALJR 808 at [27] per Kirby J. Their Honours considered (at [14]) that “[s]ubject to any statutory provision to the contrary, any conclusion as to whether the rules of natural justice require an oral opportunity to be heard can perhaps be put no more specifically than by inquiring whether a fair opportunity to be heard requires such a hearing”.

41    On appeal, Gageler and Gordon JJ considered that, in some circumstances, a denial of procedural fairness will be established by nothing more than where “the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard” and the granting of relief is justified “unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome”: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60].

42    The present case is once removed, in that the question is not whether an oral hearing was required, but whether the applicant’s presence was required at the oral hearing. As counsel for the Minister submitted, it follows from the principle stated in WZARH that there is no general rule that procedural fairness requires a decision-maker to ensure that a person affected by the decision appears in person at an oral hearing.

43    The applicant’s argument is essentially twofold:

(1)    the representation by the applicant’s counsel to the Tribunal of the applicant’s instructions was unclear; and

(2)    in any event, it was unreasonable for the Tribunal to proceed on the basis that instructions were given for counsel to proceed without the applicant.

44    The first is a question of fact; the second, ultimately, one of law. Both propositions rely on a presumption that the applicant wished to be present at the hearing, for which there is no evidence.

45    I do not accept that the representation by the applicant’s counsel to the Tribunal was unclear. As set out above, counsel for the applicant stated that he was “confident that we obtained instructions from the applicant while he was lucid in relation to the way this matter is to proceed and in relation to our position. So, we are in – we are in a position where we can proceed without the Applicant…”.

46    Contrary to the submission of the applicant, I do not accept that any lack of clarity ensued from the issues raised by the Minister, which in any event, concerned the utility of proceeding without the applicant. Rather, after hearing those submissions, and determining to proceed, counsel for the applicant expressly affirmed that course.

47    Given my conclusion as to the clarity of the statement of the applicant’s instructions, to succeed, the applicant must persuade me that his absence from the hearing resulted in a denial of procedural fairness due to not having a reasonable opportunity to present his case, contrary to the requirements of s 55(1) of the Tribunal Act.

48    In that regard, the applicant contends that the Tribunal, as an “inquisitorial reviewer”, was bound to ensure that the applicant himself was seen and heard on matters central to his credibility, citing Uelese at [62]. The case cited is not authority for that proposition. The “inquisitorial review function” performed by the Tribunal under s 500 of the Migration Act, and upon which the applicant relies, obliges the Tribunal to determine the substantive issues raised by the material and evidence before it, unconfined by the “case” put by an applicant: see, e.g., Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287 at [50] per Feutrill J.

49    That is not the issue in this proceeding, which is concerned with the anterior issue of the instructions said to be provided to the applicant’s legal representative. In oral submissions in this Court, counsel for the applicant sought to expand this inquisitorial review function to include a duty of inquiry – i.e., the Tribunal must inquire as to the instructions given. It was unclear from these submissions whether the failure to acquit this duty was considered to be a denial of procedural fairness, and/or a failure of the Tribunal to perform its function. In the end, it is not necessary to decide between the two.

50    The applicant did not bring to the Court’s attention any authorities that established a broader or generic duty to make further enquiries. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, Callinan J considered that (in the context of an alleged duty of the Tribunal to inquire as to the effects of PTSD) (at [123]):

… the obligation of any court or tribunal does not generally extend beyond an obligation to satisfy itself that a party can understand the nature of the proceedings and can give instructions and evidence as required…

51    The High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, while not deciding the question of principle, observed at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, that:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

(citations omitted)

52    While it is unnecessary to determine whether a broad duty of inquiry exists, I note that these observations are antithetical to the duty proposed by the applicant, which is untethered to the individual circumstances of any case.

53    In the circumstances of the present case, I do not accept that the Tribunal had a duty to make any further inquiries about the circumstances in which the instructions had been obtained by counsel, i.e., beyond the inquiries made of the applicant’s legal representative at the hearing, with the benefit of further assistance from the Minister’s counsel as to the significance of proceeding without the applicant. It is not the role of the Tribunal to countermand (without evidence) the instructions clearly put to it. I do not accept that there was anything inherently problematic about the proposition put to the Tribunal, which is that the applicant had given instructions to his legal representative to proceed in his absence at a time when the applicant was lucid. In that regard, I also observe that, contrary to the submission of the applicant, it is not apparent that the applicant’s credibility was in issue before the Tribunal.

54    The fundamental concern of procedural fairness is avoiding “practical injustice”: Nguyen at [62], citing Karan at [33]. In this regard, the Full Court’s decision in Karan at [30]–[31] is instructive:

…it is telling that the appellant did not adduce any evidence below (or seek to have admitted on the appeal fresh evidence) which established that “a useful result” would have been accomplished if the AAT had made inquiries, namely that he lacked the requisite mental capacity to participate effectively in the AAT proceedings.

As found by the primary judge, the appellant has given no indication as to what “useful result” might have ensued from the inquiry he submits was required in the circumstances. At [41] his Honour observed that “the Tribunal did not have any medical material before it linking the applicant's conditions to any incapacity on his part to participate in the proceedings”. This was not a case where a failure to make an enquiry amounted to a jurisdictional error. No appealable error by the primary judge is made out.

55    The applicant has not given any indication as to what “useful result” would have ensued from the enquiry he submits was required in the circumstances. He does not demonstrate that any further enquiry would have yielded a different result in terms of a willingness and ability to attend the hearing (and prior to the s 500(6L) cut-off, which is examined further below). The inference to be drawn from the “clear” instructions provided by the applicant’s counsel is that the applicant did not wish to give any further evidence about the matters arising on review.

56    Contrary to the applicant’s submission, I do not accept that the Tribunal did not make up its own mind or that it considered that it was bound by the submissions of the applicant’s counsel. The Tribunal’s engagement with both counsel belies that suggestion. That submission also ignores the expression of the Tribunal’s concerns regarding standing down the matter, which included the practicality and utility of doing so.

57    This is not a case where the Tribunal has declined to act upon the information before it (cf. Uelese at [66] per French CJ, Kiefel, Bell and Keane JJ). On the contrary, the complaint is that it did so. Further, this is not a case where the Tribunal “failed to make even the most cursory inquiry” in response to the information before it (cf. Uelese at [66]). That is evident in the exchange with counsel. In my view, the dictates of procedural fairness did not require the Tribunal to go any further.

58    As submitted by the Minister, the present case is not akin to that in WZARH (2015) (above at [41]). In circumstances where the applicant had provided written statements that were placed before the Tribunal, and where the applicant’s counsel made submissions in support of the application on the applicant’s behalf – including informing the Tribunal that instructions had been given to proceed in the applicant’s absence – the procedure adopted by the Tribunal cannot be said to have failed to afford the applicant a fair opportunity to be heard.

59    The applicant has not established that, by his absence, he was prevented from presenting his case to the Tribunal. This is in two respects. The first is that, as explained immediately above, the applicant was represented at the Tribunal hearing. The second is that the applicant has not demonstrated that any practical injustice ensued from the Tribunal’s determination to proceed, upon instruction, in his absence. To say that the applicant’s oral evidence may have been relevant to an issue in dispute, is insufficient to demonstrate practical injustice. This is because it ignores the anterior finding. Once again, there is no evidence before me that the applicant’s legal representation at the hearing was contrary to instruction (whether by the fact of continuing in the applicant’s absence or by way of presenting the applicant’s case and responding to that of the Minister).

Did the Tribunal misconstrue the operation of s 500(6L) of the Migration Act?

Applicant’s claim

60    In the particulars to Ground 1, the applicant pleads that “the Tribunal appeared unduly focused on complying with the 84-day decision-making requirement under s 500(6L), thereby compromising procedural fairness”. The applicant submits that his counsel’s submission at the end of the Tribunal Hearing, that “there was no practicability for the applicant to participate”, implied that the operation of s 500(6L) forced counsel’s hand.

61    The applicant contends that s 500(6L) is invalid due to inconsistency with s 499(2A). As such, the requirements of s 500(6L) “could not have prevented the Tribunal from affording the applicant procedural fairness by delaying the making of the decision beyond the 84th day stipulated under that section”. Section 500(6L) provides as follows:

500    Review of decision

…

(6L)     If:

(a)    an application is made to the ART for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b)    the decision relates to a person in the migration zone; and

(c)    the ART has not made a decision under the provisions of the ART Act mentioned in subsection (6M) in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the ART is taken, at the end of that period, to have made a decision under section 105 of the ART Act to affirm the decision under review.

62    The applicant submits that an “automatic decision” under s 500(6L) would conflict with the requirement in s 499(2A) for decision-makers to take into account relevant legal and factual considerations prescribed by Ministerial directions. The applicant relies on LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [33] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, as authority for the proposition that non-compliance with Direction 90 (the predecessor to Direction 110) constitutes jurisdictional error.

63    This does not make good the proposition that ss 499(2A) and 500(6L) are inconsistent; it simply highlights the consequence of non-compliance with a Ministerial direction, contrary to s 499(2A).

64    Further, the applicant submits that if s 500(6L) operates to produce a deemed decision irrespective of whether that material is considered, subss 500(6H) and (6J) (which constrain the Tribunal’s consideration of documents provided less than two business days before a hearing) are rendered ineffective. Such provisions, it is submitted, impose restrictive conditions on the admissibility of evidentiary material and submissions, reflecting Parliament’s intention that such material, once admitted, must be substantively assessed by the Tribunal.

65    The applicant submits that the statutory scheme requires s 500(6L) to yield to the overriding requirements of s 499, which mandate procedural fairness and the reception of relevant evidence by the Tribunal. That inconsistency is said to remain unless s 500(6L) is read down where the Tribunal makes a finding that the applicant deliberately delays a hearing. Accordingly, s 500(6L) did not prevent the Tribunal from adjourning the hearing to afford procedural fairness to the applicant. By misunderstanding the applicable law, the applicant claims that the Tribunal committed jurisdictional error.

Minister’s response

66    The Minister submits that, contrary to the applicant’s submission, the Tribunal did not elevate the requirement in s 500(6L) to an absolute obligation (i.e., without considering deferring the hearing). Rather it proceeded on the basis that s 500(6L) was relevant to the question of whether to adjourn the matter, and declined to do so on the express suggestion by the applicant’s legal representative that an adjournment would serve no practical purpose, in circumstances where s 500(6L) constrains the content of the duty to afford procedural fairness: Kamal v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 106 at [21] per Rares, Bromwich and Raper JJ. The applicant’s representative submitted that the hearing should not be adjourned because it was impractical to do so and there was no information as to whether the Applicant’s condition would improve if allowed an adjournment.

Consideration

67    Ostensibly, s 500(6L) operates as a time constraint. More precisely, it operates to deem a decision made (to affirm the decision under review) within the period of 84 days after the day on which the person was notified of the decision under review.

68    The difficulty with the applicant’s submission on the operation of s 500(6L) commences with its legal and factual premise.

69    First, the applicant’s challenge to the validity of s 500(6L) is misguided. There is no (necessary) inconsistency with s 499(2A), in that the two can live harmoniously together. The dictate in one (to comply with a direction) is not antithetical to the other (to render a decision within a certain period, the consequence of not doing so being to render a decision that affirms the decision under review). It cannot be assumed that such a “deemed decision” is the result of non-compliance with the direction.

70    Importantly, s 500(6L) constrains the content of the duty to afford procedural fairness: Kamal at [21]. The question is therefore whether the process adopted by the Tribunal involved unfairness to the applicant of a nature or quality which meant that he did not have a reasonable opportunity to be heard, and to present arguments and advance his case on the review.

71    Second, the applicant does not demonstrate that the Tribunal, by advertence to or reliance on s 500(6L), rendered a “deemed decision” irrespective of consideration of the relevant material. It was not an “automatic decision” simply because the Tribunal was cognisant of a time constraint, or, more precisely, of the deeming effect of the lapse of time prescribed in s 500(6L). Importantly, the applicant does not demonstrate that the operation of s 500(6L) required that the hearing proceed when it did, without any further delay.

72    It is apparent from the transcript that the Tribunal proceeded on the basis that s 500(6L) was relevant to any adjournment. Nevertheless, it “push[ed] on” following an acknowledgement from the applicant’s legal representative that it was “impractical to adjourn” the proceeding. Furthermore, the remarks of the Tribunal Member at the end of the Tribunal Hearing that the decision would be delivered “by hook or by crook”, do not reveal that the deadline dictated the course taken. This does nothing more than imply that the Member would take steps to ensure that a decision was made within the statutory timeframe.

73    For the reasons given above, the applicant does not demonstrate that, by the operation of s 500(6L) or otherwise, the process adopted by the Tribunal was such that he did not have a reasonable opportunity to be heard, or to present arguments and advance his case.

Supplementary submissions – matters relevant to the applicant’s inability to give oral evidence

74    At the hearing, I asked counsel for the Minister whether there was a suggestion before the Tribunal that the applicant was unwilling to take his medication, which issue both parties accept bore on the outcome of the Tribunal Decision. This is relevant to the question of practical injustice, and specifically the Minister’s submission (in this Court) that the only matter relevant to the applicant’s inability to give oral evidence was his criminal history.

75    The Minister provided a short note on the issue after the hearing, on 12 November 2025, which included additional excerpts of the transcript of the hearing before the Tribunal that had not been filed in this Court. The applicant provided a note in reply on 16 November 2025, which included further submissions on the report of the applicant’s witness, Dr Kwok. The Minister provided supplementary submissions in reply on 2 December 2025.

76    The position taken by the Minister before the Tribunal was that the applicant’s willingness to take his medication was a matter relevant to the Tribunal’s consideration of the matters set out in Section 8.1 of Direction 110 (regarding protection of the Australian community from criminal or other serious conduct). The relevance of the applicant’s willingness to take his medication was raised in the Minister’s SFIC, and then before the Tribunal, both in the context of the applicant’s inability to appear at the Tribunal hearing and also as regards Dr Kwok’s acceptance that the applicant’s “lack of insight is a hurdle to the applicant’s compliance with his treatment, both medication and the other forms of therapy that Dr Kwok has addressed”.

77    The applicant submitted that the Minister’s note in fact supported the applicant’s case and led to the conclusion that there was no evidence before the Tribunal about the applicant's willingness to take medication at the time of the hearing (which revealed a gap in critical evidence that only the applicant could provide). The applicant sought to bridge that gap by providing further submissions said to arise from the provision of the additional excerpts of the Tribunal transcript.

78    The applicant submits that several issues arise with respect to the reliability of the report of Dr Kwok, which “must have been obvious to the Tribunal”, if it had “turned its mind to the Report carefully”. The applicant submits further that, as Dr Kwok informed the Tribunal that she was not an expert on medication, her report could not constitute expert evidence on the issue of the applicant’s medication, the suitability of particular medications, the reasons for his reluctance to take medication, or likely future intake of medication. As a result, the applicant submits that the Minister’s position that there was no need for evidence from the applicant on this issue, cannot be sustained.

79    I accept the Minister’s submission that these further submissions should not be received by the Court. Doctor Kwok’s report was before the Court during the hearing, and none of the issues that were raised by the applicant in his further submissions arose from either the provision of additional excerpts of the Tribunal transcript or the Minister’s submissions on his position before the Tribunal.

80    Additionally, as the Minister submits, there is no ground of review that challenges the validity of the Tribunal Decision on the basis that the report was unreliable. The submissions regarding the reliability of the Kwok report were not made before the Tribunal, and they invite merits review of the Tribunal Decision. On this basis, and as a matter of prejudice to the Minister in responding to a complaint about medical evidence at this late stage, I would not grant leave to further amend the application so as to incorporate a new ground of review.

81    I accept that the Tribunal had before it detailed evidence comprising the applicant’s medical history and files, which recorded the applicant’s refusals to take his medication, and which included evidence from the applicant’s family members, and the report of his witness, Dr Kwok. This issue was raised at the outset of the Tribunal hearing. The Minister noted that the applicant’s willingness, and understanding of the need, to continue his treatment would be raised as a matter bearing on the Tribunal’s decision. The applicant’s legal representative responded by confirming that the hearing ought to proceed in the applicant’s absence, and submitted that the only matter which may have been relevant to his inability to give oral evidence concerned his criminal history.

Conclusion as to Ground 1

82    Having determined that the applicant’s counsel conveyed clear instructions to the Tribunal to proceed in the applicant’s absence, given the assessment by applicant’s counsel of the utility of the applicant’s oral evidence, the applicant has not demonstrated that any practical injustice ensued from the Tribunal deciding to proceed on the basis of the instructions conveyed by the applicant’s legal representative.

83    The matter is not resolved by assessing the potential relevance of the applicant’s oral evidence. The relevant question is whether it was unreasonable for the Tribunal to rely on the assurance provided by the applicant’s counsel in that regard. I consider that it was not unreasonable for the Tribunal to do so. This is so, even though the Minister submitted before the Tribunal that the applicant would be deprived of the opportunity to give evidence on that issue, in a context where there was no evidence from the applicant addressing the issue. (The Minister’s counsel clarified that the Minister did not take a position on whether or not it was appropriate for the Tribunal to proceed in that context.) The applicant’s counsel agreed with the Tribunal that there was no hindrance in proceeding. In so doing, the applicant’s counsel accepted that in proceeding without the applicant, the hearing “will involve some consequences in terms of admissions to be made and documentation and so forth”. That was a matter for counsel, acting upon instructions. It was not unreasonable for the Tribunal to accept counsel’s assessment on instructions, as conveyed to it.

84    Ground 1 fails. The applicant was not denied procedural fairness by the Tribunal proceeding to hear his application, on counsel’s instructions, in his absence.

Ground 2 – Tribunal’s assessment of the applicant’s ties to Australia

85    By Ground 2, the applicant contends that the Tribunal failed to consider significant evidence falling into four broad categories, viz.:

(1)    the applicant’s evidence of hardship, bullying and disadvantage as a young Afghan migrant with no education or English proficiency (which the applicant says explains the hurdles in establishing community ties);

(2)    his personal relationships and friendships, including a past cohabiting relationship with a girlfriend, and his deliberate choice of not having friends in order to stay away from crime (which the applicant says is inconsistent with the Tribunal’s finding that he had “no network of friends”);

(3)    his repeated efforts to obtain and maintain employment (which the applicant says were thwarted by circumstances such as COVID and workplace exploitation); and

(4)    the fact that he did not begin offending until February 2022, nearly eight years after arriving in Australia as a 10-year-old (a fact the applicant says is relevant to paragraph 8.3(2)(a) of Direction 110).

86    This evidence is relevant to the Tribunal’s finding at [102] of its decision that any contribution of the applicant to the Australian community “is substantially outweighed by the harm he has caused because of his offending and the public cost of addressing his offending and encouraging his rehabilitation”. In considering the strength, nature and duration of any other ties the applicant may have to the community, pursuant to paragraph 8.3(2) of Direction 110, the Tribunal found that while this consideration weighed in the applicant’s favour, it should be given minor weight. (While the Tribunal attributed this to the requisite consideration under paragraph 8.3(1), it is evident that this should have been a reference to paragraph 8.3(2). I do not consider this error to have affected the outcome.)

Applicant’s claim

87    The applicant submits that the Tribunal committed jurisdictional error in applying paragraph 8.3(2) because it failed to consider significant evidence that described the applicant’s experience in Australia, which provided the context in which his ties to the community should have been assessed. This is said to be a failure to take relevant material into account: LPDT at [3] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.

88    The applicant also submits that there was a “clear connection” between the applicant’s trauma and alienation, “hurdles to his community ties”, which was ignored by the Tribunal and treated as separate, distorting the Tribunal’s assessment.

89    The applicant cites in support the Full Court’s judgment in Singh v Minister for Home Affairs (2019) 267 FCR 200. Their Honours held that (at [36]):

The principle [that a decision-maker give proper, genuine and realistic consideration to matters they are required to consider] does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

90    The applicant complains that the Tribunal’s reasoning does not show that it took several matters affecting the applicant’s community ties into account in the context in which they arose. While the Tribunal referred to evidence falling into the categories above (at T [31]–[32] and [37]), these were said merely to recite or catalogue evidence, and not to show any meaningful assessment of their significance under paragraph 8.3(2) of Direction 110. The Tribunal, the applicant submits, failed to integrate these matters into its reasoning at T [102]–[103], and failed to properly consider the impact of these factors on the applicant’s ties in the community.

91    In this regard, the applicant refers to the statement of Sackville J in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [58] that a “decision-maker may be aware of information without paying any attention to it or giving it any consideration”: cited in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [212] per Madgwick J. The applicant also refers to Islam v Cash (2015) 148 ALD 132 at [14] per Flick J, where his Honour stated that:

Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision-maker must give more than mere “lip service” to a relevant consideration: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing).

92    The applicant submits that, in this case, matters not considered by the Tribunal “were so numerous and so critical”, with omissions that “go to matters of real significance”, that the Minister cannot rely on Singh (or any similar authority based on the proposition that a decision-maker need not refer to every piece of evidence or contention) to defend the Tribunal’s approach. Such a failure is said to be legally unreasonable due to a flawed reasoning process, citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [83] per Nettle and Gordon JJ. At the hearing, the applicant submitted that the evidence before the Tribunal was capable of supporting a finding that the applicant’s ties to Australia warranted “at least a moderate, if not significant weight” (rather than the minor weight attributed by the Tribunal).

Minister’s response

93    The Minister submits that the Tribunal considered and accepted all of the applicant’s evidence of his ties to the Australian community, before concluding that those matters weighed in the applicant’s favour: T [100]–[103]. In particular, the Tribunal did refer to each of the matters raised by the applicant, with the Tribunal’s findings at [102] of its decision, on a fair reading, incorporating the more particular findings at T [29]–[37]. These matters were then weighed in the context of the applicant’s offending. The Minister submits that in doing so, the Tribunal must be taken to have adopted its findings on that topic at T [40] et seq.

94    The Minister submits further that the Tribunal was not under a duty to refer to every piece of evidence in its written reasons: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] per French, Sackville and Hely JJ. If, contrary to the above submission, the matters raised by the applicant were not referred to by the Tribunal, it does not follow that they were overlooked. The Minister submits that the appropriate inference is that, having expressly summarised those matters (at T [29]–[40]), the Tribunal implicitly engaged with them.

95    Further, the Minister submits that even if the matters raised by the applicant were put to one side, this is not a matter where those issues were critical to the Tribunal’s reasoning in relation to paragraph 8.3(2) of Direction 110: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] per Robertson J. The Tribunal’s reasoning is said to be consistent with the position advanced by the applicant in his SFIC, namely that by reason of his circumstances, his only real connection to Australia was his immediate family members. As his submissions did not depend on the reasons for those weak ties, even if the matters raised by the applicant were not considered, that would not be sufficient in itself to result in jurisdictional error: SZRKT at [122].

96    As there is no challenge to the Tribunal’s findings that the applicant spent his formative years in Australia but had limited engagement and involvement in the Australian community; had limited education; had not held employment for longer than a month; and had no network of friends or community activities – nor is there a suggestion that the Tribunal overlooked evidence of additional ties to Australia – the Minister submits that the Tribunal was correct to consider that the applicant’s contribution to the community is outweighed by his offending, and to give his ties to Australia “minor weight”: T [103].

Consideration

97    I do not accept that the Tribunal failed to consider significant evidence falling into the four broad categories outlined by the applicant. It is evident, as the applicant accepts, that the Tribunal has adverted to this evidence as circumstances of the applicant’s background: at T [31]–[32] and [37]. However, the complaint is that the Tribunal’s reasons do not show any meaningful engagement with this evidence for the purpose of assessing its significance under paragraph 8.3(2) of Direction 110: T [102]–[103].

98    That submission contains its own conclusion as to the relevance of the evidence adverted to by the Tribunal. It is not necessary to demonstrate that the evidence has been taken into account in relation to a particular finding (which is the applicant’s own view of its significance), but that it has been considered where relevant.

99    The Tribunal addressed the timing and duration of the applicant’s offending in the context of consideration of the protection of the Australian community, as per paragraph 8.1 of Direction 110: at T [67]. Consistent with paragraph 8.1.2 of Direction 110, the Tribunal also addressed the significance of personal relationships in the context of considering the risk to the community: at T [80] regarding the significance of the break-up with his girlfriend, and at T [92]– [98] regarding family care and support.

100    The Tribunal addressed the significance of the applicant’s familial relationships in the context of considering the impact of the decision on the applicant’s immediate family members in Australia, as per paragraph 8.3(1) of Direction 110 (at T [100]–[101]), and in the context of considering the best interests of minor children in Australia, as per paragraph 8.4 of Direction 110: at T [104]–[107].

101    In line with paragraph 8.3(2) of Direction 110, the Tribunal also addressed the significance of the applicant having spent his formative years in Australia; his experience in Afghanistan and Pakistan as a young child; and his limited education and employment, in the context of considering the strength, nature and duration of his ties to Australia: at T [102]–[103]. It was not necessary (once again) to list the individual items of evidence that answered the description of this subject-matter.

102    Furthermore, the fact that a decision-maker has not referred to a particular matter does not itself supply the inference that it has been overlooked. It is open to the Court to infer that the matter was not considered to be material to the findings on questions of fact that the decision-maker considered to be material: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15 at [54] per Bromberg, Jackson and Feutrill JJ.

103    The requisite level of engagement with the material will vary according to its relevance: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24]–[25] per Kiefel CJ, Keane, Gordon and Steward JJ. Accordingly, the pertinent question is the importance of the material to the exercise of the decision-maker’s functions: SZRKT at [111]–[112].

104    The applicant cavils with the Minister’s submission that the Tribunal is not under a duty to refer to every piece of evidence (WAEE at [46]; Singh at [36]), by drawing the Court’s attention to WAEE at [47], where their Honours found that “[w]here evidence and contention raise an issue that could be dispositive, failure to deal with it may raise a strong inference it was overlooked”. However, the applicant has not identified the issue (as distinct from “four broad areas” of evidence) that is said to be overlooked.

105    Of the categories of evidence identified by the applicant, most are expressly identified by the Tribunal. Others may be inferred from the description of the applicant’s “engagement and involvement in the Australian community”, which engagement the Tribunal earlier summarises and ultimately finds to be limited. Other claims such as “workplace exploitation”; the fact that the applicant did not begin offending until February 2022, nearly eight years after arriving in Australia; a past cohabiting relationship; and a “deliberate choice” not to have friends to stay away from crime, either do not undermine the finding of limited engagement with the community or are irrelevant to it.

106    I accept the Minister’s submission that there is no inference to be drawn that the matters referred to by the applicant, and summarised in paragraphs [31]–[32] and [37] of the Tribunal Decision, were overlooked. I do not accept the applicant’s submission that the Tribunal simply catalogued the evidence without identifying or evaluating the relevant issue.

107    Read fairly and as a whole, the Tribunal Decision discloses that the Tribunal understood the applicant’s case regarding his ties with the Australian community, but ultimately regarded those ties as limited: see, e.g., Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [60] per French CJ, Bell, Keane and Gordon JJ. It was ultimately a matter for the Tribunal to determine the weight it would give the material before it when making its findings: GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 262 at [54] per Rangiah, Markovic and Snaden JJ. Any attempt to supplant that evaluation, for that of the applicant or the Court, is impermissible on an application under s 476A of the Migration Act, and cannot establish jurisdictional error.

108    Ground 2 fails. The Tribunal did not fail to consider evidence material to the applicant’s claims.

Ground 3 – Tribunal’s consideration of the applicant’s family support

109    By Ground 3, the applicant claims that the Tribunal’s decision was legally unreasonable and misapplied Direction 110. The Tribunal is said to have failed to “contextualise” the evidence regarding the applicant’s familial relationships, such that its findings regarding paragraphs 8.1.2 and 8.3(1) of Direction 110 lack intelligible justification, and are thus unreasonable. The ground has three bases. There is elision and repetition amongst those bases.

Applicant’s claim

110    By Ground 3(a), the applicant claims that the Tribunal failed to “contextualise” the evidence about the applicant’s family connection and relationships. The applicant relies on an alleged “flaw” in the Tribunal’s reasoning process, viz., that the Tribunal failed to properly consider the evidence in light of his background as a child from a recent migrant family, and thus “failed to comprehend his family support network”.

111    The applicant submits that, by considering the evidence “at a superficial level”, the Tribunal’s reasoning lacked transparent and intelligible justification. The applicant submits that legal reasonableness “demands context-sensitive reasoning”: SZVFW at [52], [59] per Gageler J.

112    In that regard, the applicant claims that the Tribunal:

(1)    failed to acknowledge the “closeness” of his support network, despite “unchallenged” evidence from the applicant’s sisters of close family cohesion; and

(2)    misconstrued the applicant’s sisters’ choice to “shield their parents and siblings” from knowledge of the applicant’s detention and mental health difficulties – that choice was, the applicant submits, protective rather than evidence of weak ties.

113    The applicant submits that Ground 3(a) is an independent ground, but also supports both Grounds 3(b) and 3(c), such that the errors alleged in T [91]–[98] also affect the Tribunal’s assessment of family impact under paragraph 8.3(1) of Direction 110: at T [100]–[101].

114    Similarly, Ground 3(b) alleges a lack of contextual sensitivity in the application of paragraph 8.1.2 of Direction 110, by focusing on the absence of a strict, formalised plan and “minimising the significance of emotionally driven care”, making the decision legally unreasonable.

115    The applicant impugns the Tribunal’s reasoning at T [91]–[98], in particular the finding at T [98] that there was no plan for the applicant’s mental health care, and that returning him to his parents’ home would not provide a safe and controlled environment for the purpose of treating his mental health. The applicant claims that the Tribunal misapplied Direction 110 in that it:

(1)    failed to properly “grasp the nuanced family dynamic”, particularly the pivotal role of the applicant’s eldest sister (which the applicant explains as the closeness of his family and their commitment to assist and care for him);

(2)    discounted the role of the applicant’s parents;

(3)    overlooked the “emotional cohesion and practical unity” among the applicant’s siblings, who were ready to provide genuine, if informal, support; and

(4)    imposed an unreasonable expectation of a regimented, documented care plan “akin to that of an institutional setting” contrary to the mandate in Direction 110.

116    The applicant submits that, instead, the Tribunal “gave undue weight” to the fact that some family members had not been informed of the applicant’s mental health condition, but failed to consider that this was due to them being emotionally close, rather than undermining the applicant’s support network.

117    By Ground 3(c), the applicant claims that the Tribunal misapplied paragraph 8.3(1) of Direction 110 because it:

(1)    failed to meaningfully engage with evidence of a close-knit Afghan family, the emotional, cultural and familial interdependence of which was said to be “both obvious and significant”;

(2)    placed disproportionate weight on the fact that some family members were not informed of the applicant’s “full mental health difficulties, without recognising that this was a protective act motivated by concern for their well-being, not evidence of emotional distance”; and

(3)    failed to consider the broader human impact of removal, including the family’s history of fleeing from Afghanistan, where they have no remaining support; the profound distress removal would cause to the parents, particularly given their ill health; and the applicant’s need for medication management and suicide risk monitoring, which his family in Australia is “best placed to monitor and support”.

118    The applicant claims that the Tribunal’s reasoning was legally unreasonable as it was neither intelligible nor contextually responsive to the applicant’s familial relationships and the “lived consequences of removal”. In “focusing on the absence of financial dependency and full disclosure”, the Tribunal is said to have “misapplied paragraph 8.3(1) in a way that was legally unreasonable”.

119    These considerations are said to mirror the Tribunal’s errors alleged in Ground 3(a) and (b) as a failure to understand the “emotional texture” and “practical structure” of the applicant’s familial support.

Minister’s response

120    The Minister submits that Ground 3(a) and (b) largely overlap and concern the Tribunal’s reasoning, at T [91]–[98], that there was no adequate or effective plan for the applicant to continue to be treated with his anti-psychotic medication if released from detention.

121    The Minister submits that the Tribunal’s reasoning was clear and cogent, based on the objective and unchallenged probative evidence before it. The Tribunal’s conclusion as to the capacity of the applicant’s family members was based on the factors set out from T [92]–[97], as well as at T [32]–[36], including that his parents were elderly, suffering serious medical conditions and unaware of his mental health conditions; the applicant’s sister faced numerous other demands on her time, including that of her parents and young children, which were complicated by a lengthy journey on public transport to her parents’ place of residence; other members of his family had not been informed of his mental health or drug addiction and faced other significant demands on their time including with young families, or working to support the family; and the applicant had been involved in conflicts with his family members before his detention and incarceration, and before he developed his drug addiction.

122    The Minister submits that, contrary to the applicant’s submission, no challenge or criticism was made of the applicant’s sister’s emotional commitment to the applicant or her intention and willingness to support him. Rather, the point made and accepted by her and the Tribunal was that the applicant’s sister’s commitments to her children, and to her elderly parents, were practical constraints on her ability to provide the kind of care which the applicant required. The evidence of Dr Kwok was that the applicant presented a high to moderate risk of reoffending without intervention, and that intervention depended, in large part, upon stabilising his treatment and medication in a safe and controlled environment, where he could be supervised: T [81], [91], [97]–[98].

123    Further, the Minister submits that the applicant’s submission that the Tribunal insisted upon a strict, formalised plan cannot be reconciled with its reasoning, which ultimately turned on the applicant’s own medical evidence.

124    The Minister submits that Ground 3(c) – essentially that the Tribunal ignored the emotional impact of removal on the applicant’s family members – rests on a statement by the Tribunal at T [101] that the applicant’s family members did not have a “continuing or ongoing financial or practical reliance on the applicant”.

125    The Minister submits that the Tribunal on several occasions considered the impact of the applicant’s removal on his family members, including at T [101] where the Tribunal accepted that a non-revocation decision would have an adverse emotional impact on the applicant’s family; at T [103] where the Tribunal concluded that the impact weighed in the applicant’s favour; and at T [107] where the Tribunal accepted that the applicant’s sister’s children could be emotionally affected by a non-revocation decision. The Minister submits that, rather than ignoring the applicant's familial connections, the Tribunal considered and accepted those connections, reasoning that those matters weighed in the applicant’s favour.

126    Furthermore, in oral submissions, the Minister’s counsel addressed the final sentence of T [101], where the Tribunal expressed “some concern about the nature of the applicant’s relationship and his family” in circumstances where many of the applicant’s family members had not been informed of the applicant’s current serious condition. The Minister submitted that this “concern” was not an adverse finding of fact, and related to the evidence given by the applicant’s sister, recorded at T [94], that the applicant’s parents had not been informed of the applicant’s detention or of his mental health condition. The Minister submitted that the Tribunal’s expression of “concern” was not unreasonable, irrational or illogical in light of the finding at T [96] that there was no evidence as to how members of the applicant’s family intended to provide the necessary care, support and supervision necessary for his treatment.

127    Furthermore, the Minister submitted that any lapse in logic was not material (such as to qualify as legally unreasonable) as the “concern” expressed by the Tribunal was not an “essential plank” in the Tribunal’s reasoning, relying on Wigney J in KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 at [80]. In view of my findings below, it is not necessary to determine whether the significance of the touted lapse in logic exonerates or expunges what would otherwise be a jurisdictional error.

Consideration

128    The three bases of Ground 3 bear a central contention of the failure by the Tribunal to “contextualise” the evidence before it. The proposition that reasonableness “is inherently sensitive to context” (SZVFW at [59]) does not take the applicant far. This is because the applicant’s submissions do not reveal a flawed reasoning process, but rather a difference of opinion.

129    The Tribunal’s findings at T [91]–[98] were directed to paragraph 8.1.2 of Direction 110 regarding the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal reasoned that:

(1)    the applicant had a history of drug use and lengthy mental health concerns (T [78]– [81]);

(2)    the applicant had been prescribed anti-psychotic medication (T [83]–[89]);

(3)    the applicant had refused to take his anti-psychotic medication on several occasions (T [88]);

(4)    the applicant’s medical evidence, that of Dr Kwok, was to the effect that his risk of re-offending or relapse rested on his willingness to take his medication (T [91], [97]); and

(5)    the applicant’s family, however well-meaning and loving, were unable to provide the kind of detailed support needed to ensure that the applicant continued to take his medication (T [92]–[98]).

130    In relation to Ground 3(a) and (b), the Tribunal considered and accepted evidence as to the applicant’s close-knit family, demonstrating care for and commitment to the applicant. This is evident in the Tribunal’s findings as to the emotional impact on family members (T [100]– [101]), and ultimately in the recognition that this consideration weighs in the applicant’s favour (T [103]).

131    The central issue in the Tribunal’s reasoning was whether the family could provide the level of practical supervision necessary to mitigate the risks identified in the medical evidence. The reasoning at T [92]–[97] is directed to that issue. The Tribunal’s conclusion that the applicant’s family would not be able to provide the necessary care and support if he were to be returned to the community was not legally unreasonable.

132    Contrary to the submission of the applicant, the Tribunal gave no indication that it expected or demanded a “regimented, documented care plan”. Rather, the Tribunal noted the absence of a “formal plan”, and then addressed the substance of what was proposed in the following terms: “No plan for the applicant’s care and supervision was provided beyond the fact that [the applicant’s sister] would visit her parents’ twice per week and that and her two young siblings … are at home (when they are not working) to remind him to take is [sic] medicine”: T [92].

133    The applicant’s medical evidence before the Tribunal, that of Dr Kwok, linked future risk and rehabilitation to treatment compliance and stabilisation in a safe and controlled environment: T [81], [91], [97]–[98]. Against that background, the Tribunal concluded that there was no sufficiently clear mechanism by which sustained treatment compliance would be achieved if the applicant were released into the community: T [91]–[98]. That is a rational process of reasoning based on the evidence before the Tribunal.

134    In relation to Ground 3(c), the Tribunal expressly found that a non-revocation decision would have an adverse emotional impact on the applicant's family: T [101]. It treated that consideration as weighing in the applicant's favour: T [103]. The fact that the Tribunal also observed that there was no ongoing financial or practical dependence (on the applicant) does not mean that those adverse consequences were overlooked. Rather, those matters formed part of the Tribunal's overall evaluative assessment of the weight to be given to those consequences. There was nothing irrational or legally unreasonable about that assessment.

135    While there may be several reasons for not informing family members about the applicant’s condition, it is not illogical or irrational to express concern “about the nature of the applicant’s relationship and his family” as a result. Moreover, as the Minister submits, the Tribunal has not made an adverse finding of fact in this regard. As indicated above, the Tribunal has accepted that a non-revocation decision would have an adverse emotional impact on the applicant’s family. Furthermore, the Tribunal’s “concern” must be viewed in light of the Tribunal’s finding that no evidence was provided as to how the members of the applicant’s family intended to provide the necessary care, support, and supervision necessary for the applicant’s treatment (save to say that the applicant would be ‘at home’). It is in the context of that finding that the Tribunal refers to the evidence of the applicant’s sister that most of the applicant’s family are unaware of the applicant being in detention or of his mental health condition.

136    Viewed in that light, the Tribunal’s concern is expressed in the broader context of the absence of evidence to demonstrate that which Dr Kwok indicated was essential, viz., a stable and controlled environment for the applicant to stabilise his medication before being released into outpatient therapy: T [91]. The family’s knowledge of the applicant’s circumstances, including his mental health condition, is part of the assessment of that environment. Such evidence is inextricably linked to the Tribunal’s assessment of the risk of harm should the applicant fail or refuse to take his prescribed medication and relapse into using drugs: see T [89].

137    Ground 3 fails. The Tribunal’s reasoning regarding the potential risk to the Australian community and the applicant’s ties to the community did not lack an intelligible justification, and was not legally unreasonable.

CONCLUSION

138    The application should be dismissed, with costs.

Associate:

Dated:    12 November 2026