BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2025] FCAFC 14

FEDERAL COURT OF AUSTRALIA
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14

Appeal from: BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301

File number: QUD 211 of 2024

Judgment of: RANGIAH, DERRINGTON AND ROFE JJ

Date of judgment: 19 February 2025

Catchwords: MIGRATION – where Administrative Appeals Tribunal (Tribunal) affirmed decision not to revoke cancellation of visa under s 501CA(4) of the MigrationAct 1958 (Cth) – whether Tribunal failed to consider representations made by appellant – whether errors were material – whether Tribunal made a finding unsupported by evidence – appeal allowed

Legislation: Migration Act 1958 (Cth) ss 5J(1)(c), 36, 499(1), 499(2A), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3), 501CA(3)(b), 501CA(4) and 501CA(4)(b)

Cases cited:
BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75

CNY17 vMinister for Immigration and Border Protection (2019) 268 CLR 76

GBV18 v Minister for Home Affairs (2020) 274 FCR 202

GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

MZAPC vMinister for Immigration and Border Protection (2021) 273 CLR 506

PlaintiffM1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Wilson TransformerCo Pty Ltd v Anti-Dumping Review Panel (2022) 290 FCR 1

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 196

Date of hearing: 23 August 2024

Counsel for the Appellant: Mr G Rebetzke

Solicitor for the Appellant: Prisoners’ Legal Service

Counsel for the First Respondent: Mr B McGlade

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

QUD 211 of 2024

BETWEEN:
BNY23

Appellant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

RANGIAH, DERRINGTON AND ROFE JJ

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The judgment in BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301 be set aside.
3.A writ of certiorari issue quashing the second respondent’s decision made on 10 May 2023.
4.A writ of mandamus issue requiring the second respondent to consider the appellant’s application for review of the first respondent’s decision made on 15 February 2023 according to law.
5.The first respondent pay the appellant’s costs of the appeal and the proceeding at first instance.

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

REASONS FOR JUDGMENT
RANGIAH AND ROFE JJ:

The legislative scheme

[6]

The Tribunal’s decision

[21]

The primary judgment

[40]

The grounds of appeal and contention

[53]

The submissions

[55]

The Notice of Contention

[55]

The Notice of Appeal

[61]

Ground 1

[61]

Ground 2

[69]

Ground 3

[75]

Consideration

[83]

The Notice of Contention

[83]

Notice of Appeal – Ground 1

[118]

Notice of Appeal – Ground 2

[146]

Notice of Appeal – Ground 3

[158]

Conclusion

[175]

This is an appeal from the judgment of a single judge of the Court in BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301.
By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (the Tribunal). The Tribunal’s decision had affirmed a decision of a delegate of the first respondent (the Minister), made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of the appellant’s visa.
The Notice of Appeal alleges, in summary, that the primary judgment is affected by the following errors:
(a)Having correctly found that the Tribunal had misinterpreted the relevant Ministerial direction and consequently failed to evaluate the appellant’s representations that his offending was not premeditated and not intentionally targeted towards women, her Honour erred in holding that the error was not material and was therefore not a jurisdictional error.
(b)Her Honour erred in failing to hold that there was no evidence to support the Tribunal’s finding that the Anuak language was widely spoken in the western part of Ethiopia.
(c)Her Honour erred in failing to hold that the Tribunal had erroneously failed to take into account the appellant’s representation that the risk of harm he would face if returned to Ethiopia was an impediment to establishing himself and maintaining basic living standards in that country.
The Minister’s Notice of Contention asserts that the primary judge erred in holding that the Tribunal erred by failing to evaluate the appellant’s representations.
It is necessary to summarise the legislative scheme and the reasons of the Tribunal and the primary judge in order to give context to the grounds of appeal and contention and the parties’ submissions.
The legislative scheme
Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that:
·the holder does not pass the character test because of the operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c), and;
·the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(3)(b) of the Act requires the Minister to invite a person whose visa has been cancelled under s 501(3A) to make representations about revocation of the original decision.
Section 501CA(4) of the Act provides:
(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.
The decision under challenge before the primary judge was the Tribunal’s decision to affirm the decision of the Minister’s delegate under s 501CA(4) not to revoke the cancellation decision.
Section 499(1) allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to, “comply with a direction under subsection (1)”.
At the time of the Tribunal’s decision, the Minister’s direction under s 499(1) of the Act for the making of decisions under s 501CA(4) was Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99). A number of aspects of Direction 99 are relevant for the present case.
Direction 99 commenced with a preamble which set out the objectives of the Direction. Of present relevance is that paragraph 5.1(4) provided:
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 had the heading “Principles”. It provided, relevantly:
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
…
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case…
Part 2 of Direction 99 had the heading, “Making a decision”. Paragraph 6 provided:
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 provided:
7. Taking the relevant considerations into account
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 had the heading, “Primary considerations”. That paragraph provided:
8.        Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)      whether the conduct engaged in constituted family violence;
(3)      the strength, nature and duration of ties to Australia;
(4)      the best interests of minor children in Australia;
(5)      expectations of the Australian community.
Paragraphs 8.1, 8.1.1 and 8.1.2 have particular relevance for the present case. They set out a number of factors decision-makers were required to have regard to in considering the primary consideration of “protection of the Australian community”. They will be set out in full later in these reasons, but it may presently be noted that paragraph 8.1(2) required decision-makers to give consideration to (a) the “nature and seriousness of the non-citizen’s conduct to date”; and (b) “risk to the Australian community should the person commit further offences or engage in other serious conduct”.
Paragraph 9 had the heading, “Other considerations”. Paragraph 9(1) provided:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact on Australian business interests
Paragraph 9.2 provided:
9.2 Extent of impediments if removed
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Tribunal’s decision
The appellant was born in 1993 in the Gambela region of Ethiopia. He is of Anuak ethnicity. The appellant’s mother died and his father was killed when the appellant was a child. The appellant fled to Kenya with members of his extended family in 2003, during a time when Anuak people were being massacred in the Gambela region.
The appellant was granted a Refugee visa and arrived in Australia in 2008 at the age of 15. It is apparent from the evidence that the appellant has significant mental health problems, including post-traumatic stress disorder and drug-induced psychosis.
The appellant has a lengthy criminal history in Australia. On 3 August 2021 in the Magistrates Court of Queensland, he was convicted, relevantly, of two counts of entering premises and committing an indictable offence and sentenced to concurrent sentences of 12 months’ imprisonment. On 7 April 2022, a delegate of the Minister made a decision under s 501(3A) of the Act to cancel the appellant’s visa (the cancellation decision).
The appellant subsequently made representations to the Minister pursuant to s 501CA(3) of the Act seeking revocation of the cancellation decision. On 15 February 2023, a delegate of the Minister decided not to revoke that decision.
The appellant then sought review of the delegate’s decision in the Tribunal. On 10 May 2023, the Tribunal decided to affirm the delegate’s decision, providing written reasons for its decision.
The Tribunal’s reasons commenced by observing that it was common ground that the appellant did not pass the character test as defined by s 501(6) of the Act and that the only question for the Tribunal was whether, under s 501CA(4)(b), it was satisfied there was “another reason” why the cancellation decision should be revoked. The Tribunal observed that in determining that question, it was necessary to comply with Direction 99.
The Tribunal considered the appellant’s “extensive criminal history in Australia”. The Tribunal identified three phases of the appellant’s offending, the first being from 2011 to 2014, the second in 2017, and the third from 2019 to 2020. The second phase included a series of offences on 26 May 2017 involving throwing projectiles at moving motor vehicles and assaulting the occupants when they stopped. Most of the victims were males, but one offence involved kicking a woman and another involved throwing a projectile at the driver-side windscreen of a female driver. The appellant was convicted on 19 April 2018 in the District Court of Queensland at Beenleigh of four counts of intentionally endangering the safety of a person travelling in a vehicle, for which he was sentenced to two years’ imprisonment on each count, and three counts of assault occasioning bodily harm, for which he was sentenced to nine months’ imprisonment on each count, all sentences to be served concurrently.
The Tribunal noted that on 23 July 2019 the appellant had committed a series of offences, including entering premises and committing an indictable offence, in the course of which he aggressively approached a female console operator at a service station, causing her to fear for her safety and run into an office where she was able to lock the door.
Before the Tribunal, the appellant’s closing written submissions had addressed the primary consideration of “protection of the Australian community” under paragraph 8.1 of Direction 99. The Tribunal observed that paragraph 8.1(2) required the Tribunal to give consideration to: (a) the “nature and seriousness of the non-citizen’s conduct to date”; and (b) “risk to the Australian community should the person commit further offences or engage in other serious conduct”.
In respect of the, “nature and seriousness of [the appellant’s] conduct to date”, the Tribunal observed that under paragraph 8.1(2)(a), “the types of crimes or conduct…viewed very seriously by the Australian government and the Australian community”, included “violent crimes” and “crimes of a violent nature against women”. The Tribunal noted that the appellant had conceded that some of his offending met the threshold of being “viewed very seriously” pursuant to paragraph 8.1.1(1)(a) and went on to reject the appellant’s submission that certain other offences were not in that category.
Importantly for the present appeal, the Tribunal then found:
31.The Applicant contends that none of his acts of violence were premeditated, and that his violent crimes against women were not intentionally targeted at women. The Applicant’s purpose in making these submissions is, presumably, to invite me to view his offending less seriously compared to if his crimes were “premeditated” and “targeted”. Respectfully, I reject this invitation. Sub-paragraph 8.1.1(1)(a) requires me to consider the types of crimes committed, not the intention in committing the crimes. The Applicant pled guilty and was convicted of committing numerous violent crimes and crimes of a violent nature against women. The circumstances of the Applicant’s offending in these regards moved his Honour Judge Chowdhury to note the “very serious” nature the [sic] Applicant’s conduct.
32.In my view, the Applicant’s conduct clearly involves repeatedly committing violent crimes and crimes of a violent nature against women. Accordingly, my finding is that the Applicant’s offending engages sub-paragraph 8.1.1(1)(a)(i) and is property [sic] characterised as “very serious”.
(Footnotes omitted.)
The Tribunal went on to consider the appellant’s offending against the criteria in paragraphs 8.1.1(1)(b), (c), (d) and (e). The Tribunal then concluded that, “the totality of [the appellant’s] unlawful conduct in Australia can be readily characterised as ‘very serious’”.
The Tribunal then considered paragraph 8.1.2(2). The Tribunal noted that paragraph 8.1.2(2)(a), “requires an assessment of the nature of harm to an individual or the Australian community were the [appellant] to engage in further criminal or other serious conduct”. The Tribunal noted that the appellant’s oral submissions concerning paragraph (a) were, relevantly, “I accept there is a risk of further harm to the community, but I would just be careful not to overstate it”, and, “I accept there is some risk of violent offending…”. The Tribunal found that if the appellant were to reoffend, “the nature of the harm to [his] victims and/or the community at large would be serious (or even catastrophic) physical, mental or economic harm”.
The Tribunal then went on to consider paragraph 8.1.2(2)(b), which referred to the, “likelihood of…further criminal or other serious conduct”. The Tribunal noted the appellant’s submission that his risk of offending in a serious way, “is not high”, but concluded, relevantly:
in the absence of the [appellant] having engaged in a structured and comprehensive rehabilitation journey, to address his seemingly complex recidivist risks and substance abuse recovery needs (including the triggers for his serious offending), he likely remains a presently serious, and unacceptably high risk of reoffending.
The Tribunal concluded that the primary consideration of “protection of the Australian community”, “carries a very heavy weight against revocation of the mandatory cancellation of the [appellant’s] visa”.
Later, the Tribunal considered, under paragraph 9.2 of Direction 99, the “legal consequences of the decision”. The Tribunal noted that the appellant claimed to be owed non-refoulement obligations, but decided that assessment of that claim was best left for the Protection visa process.
The Tribunal turned to consider paragraph 9.2 of Direction 99, “extent of impediments if removed”. The Tribunal noted that paragraph 9.2 requires the decision-maker to take into account the, “extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards”, taking into account matters including, “whether there are any substantial language or cultural barriers”.

The Tribunal found that as the appellant had spent around one third of his life in Ethiopia, it was difficult to assert that he would be confronted with insurmountable or significant cultural barriers if he were returned to that country. The Tribunal found that the appellant maintained a sound Anuak language capacity and that, “Anuak is the language of the Anuak people and is widely spoken in the western part of Ethiopia”. The Tribunal was not persuaded that any language barrier would impede his return to and resettlement in Ethiopia.
The Tribunal went on to find that, overall, the weight it attributed to the considerations against revocation of the cancellation decision was greater than the weight of the considerations favouring revocation. The Tribunal determined that it was unable to exercise the discretion to revoke the cancellation decision.
The primary judgment
There were four grounds of review before the primary judge. The grounds were as follows:
(1)The Tribunal failed to comply with Direction 99 in that it failed to give proper consideration to the nature and seriousness of the appellant’s conduct to date as required by the Direction because it erroneously directed itself that it was not required to consider the appellant’s intent (or absence of intent) – including whether the offending conduct was intended to be targeted towards women – and whether or not the offending conduct was premeditated, and the failure to properly carry out the assessment of the nature and seriousness of the appellant’s conduct required by the Direction was material to the Tribunal’s decision;
(2)There was no evidence or other material before the Tribunal to support the finding that the Anuak language is “widely spoken in the western part of Ethiopia”, and this finding was material to the decision;
(3)The Tribunal failed to comply with Direction 99 by failing to properly carry out the inquiry required by paragraph 9.2(1) of the Direction with respect to the extent of impediments the appellant may face if removed from Australia, by reason of the Tribunal’s failure to consider the risk of harm faced by the appellant if removed to Ethiopia, including the extent of impediments faced by the appellant if, due to a risk of persecution or serious harm, he had to resettle outside of the Gambela region, and the failure to comply with the Direction was material to the decision; and
(4)In the alternative to ground (3), the Tribunal failed to evaluate the appellant’s representations that the risk of suffering persecution or serious harm is an impediment he will face if removed from Australia.
In respect of the first ground, the appellant argued that the Tribunal had misconstrued paragraph 8.1 of the Direction, thereby misdirecting itself as to the proper consideration of the nature and seriousness of the appellant’s conduct to date. The appellant submitted that the Tribunal had refused to properly consider the representations by refusing to have regard to the absence of premeditation and intentional targeting of women.
The primary judge observed that the Tribunal must read, identify, understand and evaluate the representations by an applicant, citing PlaintiffM1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021). Her Honour held that, “[a]s the applicant’s lack of intentional targeting of women and premeditation were representations made by the applicant, the Tribunal was obliged to consider them”. Her Honour observed that whether the Tribunal had erred turned upon the proper construction of [31] of its reasons, namely, whether the paragraph reflected a decision by the Tribunal to reject the appellant’s invitation to consider the representations regarding intention and premeditation at all; or whether the Tribunal considered those representations but then rejected the appellant’s invitation to view the offending as less serious.
As to whether the Tribunal had evaluated the appellant’s representations regarding intention and premeditation, her Honour concluded:
24In my view, while the Decision correctly identifies the applicant’s representations regarding intention, the Tribunal does not engage, either in [31] or elsewhere in the reasons, in any evaluation regarding how and to what extent these representations impact its overall conclusion as to the nature and seriousness of the offending.
25That is because it is apparent from [31] of its reasons that the Tribunal considered that, because the applicant’s conduct involved crimes of a violent nature against women, which in turn engaged paragraph 8.1.1(1)(a) of the Direction, the conduct must be characterised as very serious. Therefore, the Tribunal’s rejection of the applicant’s invitation to view his offending “less seriously compared to if his crimes were ‘premeditated’ and ‘targeted’” is an erroneous interpretation of the Direction as not requiring the decision-maker to take into account further considerations relating to the nature and seriousness of the offending, namely the applicant’s representations regarding intention. In short, the Tribunal failed to evaluate the applicant’s representations.
Having concluded that the Tribunal erred by misconstruing Direction 99 and thereby failing to evaluate the relevant representations, the primary judge turned to consider the question of the materiality of the Tribunal’s error, applying the judgment of the Full Court of the Federal Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1 (LPDT FFC) at [77]–[79] (which was later overruled by LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT HC)).
Her Honour held that even if the Tribunal had not made the identified error, there was no “realistic possibility” that the decision could have been different for two reasons. The first was that, in reaching its conclusion as to the nature and seriousness of the appellant’s conduct to date, the Tribunal had regard to other considerations, including the appellant’s commission of crimes against vulnerable members of the community and government representatives, the appellant’s multiple sentences for violent and other crimes, the frequency of the appellant’s offending, the trend of increasing seriousness and the cumulative effect of his repeated offending.
The second reason was that in concluding that protection of the Australian community carried, “a very heavy weight against revocation”, the Tribunal took into account other key findings with respect to the nature and seriousness of the appellant’s offending. Regarding the, “risk posed to the Australian community should the [appellant] commit further offences”, the Tribunal had emphasised the absence of any expert independent clinical written advice concerning the levels of rehabilitation achieved by the appellant. Her Honour considered it to be apparent from the Tribunal’s reasons that these key findings did not flow from its findings as to the nature and seriousness of the appellant’s conduct.
As to the appellant’s second ground, her Honour noted that the appellant had submitted that the Tribunal did not have, “a skerrick of evidence or information”, to support its finding that the Anuak language, “is widely spoken in the western part of Ethiopia”. The primary judge rejected this submission, holding at [44] that the evidence before the Tribunal established that the Anuak language is spoken by the Anuak people and the map of Ethiopia’s regions in evidence showed that Gambela is located in the western part of Ethiopia.
Her Honour observed that the appellant could not point to any evidence that the Anuak language is only spoken in the Gambela region, nor was there any evidence that the Anuak people only reside in the Gambela region.
Her Honour also observed that there was no suggestion that the appellant would, if returned to Ethiopia, reside in any region other than the Gambela region with the Anuak people. Her Honour considered it to be implicit in the Tribunal’s findings that, were the appellant removed to Ethiopia, he would reside in the Gambela region with the Anuak people, this being the basis upon which his case was advanced before the Tribunal.
The primary judge went on to hold that even if the Tribunal had made the asserted error, it would not have been material.
The primary judge’s reasons for rejecting the appellant’s third and fourth grounds will be described in the course of considering the appellant’s third ground of appeal.
The primary judge dismissed the application for review, with costs.
The grounds of appeal and contention
The appellant’s grounds of appeal are as follows:
1.The Court erred in failing to uphold the first ground of the amended application by erroneously concluding that the error found by the Court was not material and in doing so:
(a)failed to consider whether it could be affirmatively concluded that the outcome would inevitably have been the same had the error not been made (and where it was not possible to affirmatively conclude that the outcome would inevitably have been the same without impermissibly assessing and weighing the facts for itself);
(b)having found that the Tribunal failed to carry out a proper assessment of the nature and seriousness of the appellant’s conduct to date as required by the Direction, impermissibly assessed for itself the relative seriousness of the appellant’s conduct to date having regard to other considerations and implicitly then weighed for itself the seriousness of appellant’s conduct to date against other considerations;
(c)impermissibly relied upon the Tribunal’s findings regarding the risk posed to the Australian community should the appellant commit further offences or engage in other serious conduct: (a) as if those findings were an independent route to the Tribunal’s outcome; and (b) as if the nature and seriousness of the appellant’s conduct had no bearing on the Tribunal’s assessment of the risk posed to the Australian community in the future; and
(d)erroneously limited its materiality enquiry to whether the error affected the Tribunal’s intermediate conclusion that Primary Consideration 1 carries a “very heavy weight against revocation” when the Court was required to consider whether the weight accorded to Primary Consideration 1 would inevitably have been the same upon the Tribunal’s weighing up of competing considerations in circumstances in which the Tribunal was not required to give a fixed weight to “very heavy weight” in its weighing of competing considerations;
2.The Court erred in failing to uphold the second ground of the amended application by:
(a)erroneously finding that there was evidence to support the language finding; and
(b)erring in its consideration of materiality by impermissibly weighing for itself the relative weight to be accorded to the extent of impediments consideration had the Tribunal not committed the error with respect to the language finding and by not affirmatively concluding that the outcome would inevitably have been the same had the alleged error not been made (and when it could not have affirmatively so concluded); and
3.The Court erred in failing to uphold the third and fourth grounds of the amended application by:
(a)erroneously concluding that the risk of harm faced by the appellant in Ethiopia was irrelevant to the question of the existence of any impediments which the appellant may face in establishing himself and maintaining basic living standards in Ethiopia;
(b)erroneously finding that the Tribunal considered the appellant’s representation regarding the risk of harm if returned to Ethiopia; and
(c)erroneously finding that the alleged error was immaterial despite finding that the alleged error could have resulted in greater weight being placed on “Other Consideration (b)”, in that:
(i)the Court implicitly, and impermissibly, assessed and weighed for itself the relative weight to be accorded to “Other Consideration (b)” had the error not been made by the Tribunal; and
(ii)the Court failed to apply the correct test as to materiality which requires an affirmative conclusion that the outcome would inevitably have been the same had the error not been made.
The Minister’s Notice of Contention relies upon a single ground asserting that, “the Tribunal did not, in fact, commit the error of law complained of”.
The submissions
The Notice of Contention
It is convenient to begin with the Minister’s submissions concerning the Notice of Contention.
The Minister accepts that the appellant submitted before the Tribunal that his violent offending (including against women) was not premeditated and did not involve him intentionally targeting women. The Minister submits that these representations appeared to be directed to the issue of the appellant’s risk of re-offending. The Minister submits that, alternatively, if the representations were directed to the seriousness of past offending, the appellant’s submission can be regarded as being that his offending was less serious than the case of a person who engaged in premediated or intentionally targeted violence (including towards women).
The Minister submits that at no point did the appellant suggest that a proper categorisation of the totality of his offending conduct was anything other than, “very serious”, and that his counsel appeared to concede as much in oral closing submissions before the Tribunal.
The Minister submits that while the primary judge found that the Tribunal’s reasons at [31] should be construed as reflecting an erroneous interpretation of Direction 99, another available construction is preferable, or is at least equally available. That construction is that the Tribunal considered the appellant’s representations about absence of premeditation and targeting of women but then rejected the appellant’s invitation to view the offending as less serious by reason of those matters. The Minister submits that the Tribunal considered the seriousness of the appellant’s offending by looking at the nature of the offences that had been committed (involving violence, including against women) and taking the view that the claim that they were not premeditated or intentionally targeted towards women did not materially detract from their degree of seriousness. It is submitted that, viewed in this way, the Tribunal considered and evaluated the relevant representations.
The Minister contends that this construction of the Tribunal’s reasons is supported by the absence of any expression of intention to refuse to consider the relevant representations altogether, but only a refusal to accede to the “invitation” to view the appellant’s crimes in a less serious light. The absence of any doubt expressed by the Tribunal about whether the crimes involved premeditation or intentional targeting of women is said to be consistent with viewing such matters as not having any material weight in determining the seriousness of the offending. The Minister also submits that the Tribunal’s recognition that its statutory task requires, “a careful review of the Appellant’s representations and the evidence put forward in support of them”, renders it less likely that the Tribunal would proceed not to evaluate the relevant representations.
In response, the appellant submits that the primary judge’s reasoning in holding that the Tribunal failed to carry out the proper assessment required by Direction 99 of, “the nature and seriousness of the appellant’s conduct to date”, was correct.
The Notice of Appeal
Ground 1
The appellant’s first ground challenges the primary judge’s determination that the Tribunal’s error in failing to evaluate the representation that his offending was not premeditated and did not target women was not material to its decision.
The appellant submits that, in relying on LPDT FFC, the primary judge misunderstood the Court’s task as requiring a, “reconstructive factual exercise”, an approach subsequently disapproved in LPDT HC as transgressing the line between judicial review and merits review. He submits that the Court impermissibly intruded into the merits by finding that nothing the Tribunal would have concluded about lack of intention to target women or premeditation would have affected the combined weight of other factors.
The appellant submits that the second reason articulated by the primary judge, that the Tribunal also took into account the, “risk to the Australian community should the non-citizen commit further offences”, is not an independent route to a finding concerning, “protection of the Australian community”, since paragraph 8.1(2) of Direction 99 requires the decision-maker to consider the nature and seriousness of past conduct in evaluating the risk of future further conduct.
The appellant also submits that the primary judge’s opinion that the Tribunal would have ascribed the same “very heavy weight” to “protection of the Australian community” had it properly evaluated the representations was speculative.
The Minister submits that, properly understood, all the primary judge did was consider, by reference to the Tribunal’s reasons and other material, the objective possibility of the outcome being different if the error was not committed. The Minister submits that LPDT HC does not preclude such an approach: rather the focus is on precluding courts from engaging in “improper speculation” and making “assumptions” as to how a decision-maker “would have” reasoned. It is submitted that LPDT HC should not be construed inconsistently with previous decisions of the High Court which endorse the assessment of materiality by reference to the objective possibility of a result changing as a matter of reasonable conjecture within the parameters set by the historical facts, including where that requires the Court to evaluate the weight that was objectively capable of being given to a particular matter, citing CNY17 vMinister for Immigration and Border Protection (2019) 268 CLR 76 at [47], MZAPC vMinister for Immigration and Border Protection (2021) 273 CLR 506 (MZAPC) at [38], and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48].
The Minister submits that it was improbable – if not fanciful – that the Tribunal’s assessment that “very heavy” weight should attach to the consideration of the protection of the Australian community would not have been made but for the alleged error. In support of that submission, the Minister argues that the assessment of “very heavy” weight was derived from two subsidiary attributions of weight, namely the weight attributed to the seriousness of the appellant’s past offending and the weight attributed to the appellant’s future risk of offending.
As to the latter matter, the Tribunal found that the appellant was at high risk of engaging in future offending that would cause serious harm to the community. The Minister argues that the force of this finding cannot be understated in the context of a statutory provision underscored by notions of protection and where the finding was unconnected with the Tribunal’s view as to the seriousness of the appellant’s past offending.
As to the former matter, the Minister submits that the Tribunal’s alleged error arose in the context of it evaluating one aspect of paragraph 8.1.1(1)(a) of the Direction (that is, in evaluating the seriousness of the appellant’s violent offences and offences against women), which, as the primary judge noted, was but one of a number of factors weighing in the Tribunal’s evaluation of the seriousness of the appellant’s past offending.
Ground 2
The appellant submits that there was not a skerrick of evidence to support the Tribunal’s finding that Anuak is, “widely spoken in the western part of Ethiopia”. He submits that in the absence of a finding that the appellant would likely reside in the Gambela region, the finding must be taken to mean (as it says) that the appellant would not face language impediments upon his return to Ethiopia because Anuak is widely spoken in the western part of Ethiopia; that is, widely spoken beyond Gambela.

The appellant submits that by finding that it was implicit in the Tribunal’s language that the appellant would reside in the Gambela region, the primary judge intruded upon the merits by giving a construction to the Tribunal’s reasons that effectively reworked the apparent basis for the Tribunal’s finding that the appellant’s Anuak language would not impede his return to and resettlement in Ethiopia. He submits that the Tribunal made no express finding that the appellant would reside in the Gambela region and that his case before the Tribunal was not predicated upon return only to Gambela, but was specifically put on the basis that he feared violence and discrimination in any part of Ethiopia due to his Anuak ethnicity.
The appellant argues that her Honour could only have been affirmatively satisfied that the outcome would inevitably have been the same if the Court either made assumptions about how the Tribunal would have undertaken the weighing exercise, or assumed the function of the Tribunal and assessed for itself the weight to be attached to a language barrier in the “extent of impediments if removed” consideration relative to other various considerations.
The Minister submits that the appellant’s case was put on the express, or at least implicit, basis that if removed to Ethiopia, he would reside in the Gambela region with the Anuak people. The Minister submits the evidence clearly supported the Tribunal’s finding that, “Anuak is the language of the Anuak people and is widely spoken in the western part of Ethiopia”.
The Minister submits the contention that no finding was made that, if removed, the appellant would reside in the Gambela region with the Anuak people should be rejected for two reasons. First, the primary judge correctly found that the relevant finding was, “implicit in the Tribunal’s language finding”, which was a readily available inference. Second, the appellant’s contention that, if returned he would be harmed in any part of Ethiopia does not assist the appellant because the submission did not purport to be a submission about where the appellant would seek to reside in Ethiopia.
The Minister also submits that, even if the alleged error was made, it was not material for the reasons given by the primary judge.
Ground 3
The appellant observes that while the majority in Plaintiff M1/2021 recognised that it was open to defer consideration of a non-refoulement claim to a future Protection visa application, their Honours held that it may nevertheless be necessary to take account of the facts underpinning the claim where they are independently relied upon as “another reason” why the cancellation decision should be revoked.
The appellant submits that his claim that he would suffer harm due to his Anuak ethnicity ought to have been considered as part of the “other consideration” of “extent of impediments if removed” under Direction 99. The appellant submits that his claims before the Tribunal included that Anuak people are discriminated against, treated badly, bashed, killed and denied access to services.
The appellant observes that the primary judge reasoned that the Tribunal had turned its mind to the appellant’s representation by reason of the Tribunal’s conclusion that he would not be returned to Ethiopia if found to qualify for complementary protection because that would involve a finding that he would be at risk of significant harm. The appellant submits that her Honour imputed to the Tribunal reasoning that was illogical. That is because the criteria for the grant of a Protection visa on complementary protection grounds is more limited than merely facing impediments in establishing and maintaining basic living standards. While complementary protection is limited to “significant harm” as defined in s 36 of the Act, other forms of discrimination may fall short of “significant harm” yet impose a significant impediment to establishment and maintenance of basic living standards.
The appellant submits that the structure of the Tribunal’s reasons demonstrates that the Tribunal did not consider whether the various forms of discrimination against Anuak people would be an impediment to the appellant establishing himself and maintaining basic living standards in Ethiopia. The appellant argues that once the primary judge accepted the possibility of greater weight being placed on “Other consideration (b)”, her Honour ought to have accepted that the error was material.
The Minister submits that once the Tribunal decided to defer consideration of the appellant’s non-refoulement claims under paragraph 9.1 of Direction 99, paragraph 9.2 had no relevant application. Paragraph 9.2 did not require taking into account all types of detriment that a person may face if returned to their home country, such as general risks of harm.
The Minister argues that the appellant advanced no case before the Tribunal that on account of discrimination due to his Anuak ethnicity, he would face forms of harm or detriment that would not meet the Protection visa criteria, but would cause him impediments in terms of establishing himself and maintaining a basic living standard. Instead, the asserted discrimination was put forward as part of his claim that non-refoulement obligations were owed to him. Moreover, the appellant made no attempt to explain how such lower-level discrimination would result in him being unable to establish himself and maintain basic living standards. The Minister argues that, consequently, there was no obligation for the Tribunal to consider the asserted discrimination.
The Minister submits that it is unclear how the Tribunal would be able to readily isolate any consideration of the impediments the appellant would face on account of lower-level discrimination from consideration of his protection claims.
The Minister also submits that any error would not be material for the reasons given by the primary judge.
Consideration
The Notice of Contention
It is convenient to begin by considering the Minister’s Notice of Contention, which asserts that the primary judge erred in holding that the Tribunal had made the error identified by her Honour.
The primary judge held that the Tribunal had wrongly determined that because the appellant’s conduct involved crimes of a violent nature against women which engaged paragraph 8.1.1(1)(a) of Direction 99, the conduct must be characterised as very serious. Her Honour held that the Tribunal’s rejection of the appellant’s invitation to view his offending “less seriously” than if “premeditated” and “targeted” erroneously interpreted Direction 99 as not requiring the decision-maker to take into account other considerations relating to the nature and seriousness of the offending. This had caused the Tribunal to fail to evaluate the appellant’s representations concerning lack of premeditation and intentional targeting of women.
It is necessary to consider the relevance of the appellant’s submission to the Tribunal that his offending was not premeditated and had not intentionally targeted women in the context of paragraph 8.1 of Direction 99 and then to consider how the Tribunal dealt with that submission.
The appellant’s written submissions to the Tribunal closely followed the structure of Direction 99 by addressing each relevant “primary consideration” and “other consideration”. The Tribunal’s reasons also closely followed the structure of Direction 99, addressing each of the enumerated considerations and paragraphs considered to be relevant.
When making a decision under s 501CA(4) of the Act, the decision-maker is required, by force of s 499(2A), to comply with a Ministerial direction made under s 499(1). However, that requirement must be understood against the “wide discretionary power” conferred upon a decision-maker to revoke a decision to cancel a visa if satisfied that there is “another reason” why that decision should be revoked: see Plaintiff M1/2021 at [22]. In Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], the Full Court observed that a Ministerial direction under s 499(1) of the Act is, “not an exhaustive universe”. In Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 (Manebona), the Full Court held at [93] that a Ministerial direction cannot validly operate to fetter the discretion conferred under s 501CA(4).
Direction 99 did not purport to limit the considerations to which a decision-maker may have regard in exercising the discretion under s 501CA(4), and did not require that a decision-maker must invariably take into account the considerations that are specified: cf Manebona at [94]. That is apparent from the language of paragraph 5.1(4) (“[t]he purpose of this Direction is to guide decision-makers”); paragraph 5.2(6) (“[d]ecision-makers must take into account the primary and other considerations relevant to the individual case”); and paragraph 6 (“a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”). Those paragraphs make it clear that Direction 99 provided a “guide” to decision-making and that the decision-maker was only required to take into account such of the specified considerations as the decision-maker considered to be relevant: see Manebona at [95].
Neither did Direction 99 purport to dictate the weight to be given by decision-makers to particular considerations: cf Plaintiff M1/2021 at [24]. That was made clear by paragraph 7(1), which provided that, “[i]n applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight” (emphasis added). In addition, paragraph 7(2), by providing that, “[p]rimary considerations should generally be given greater weight than the other considerations” (emphasis added), indicated that the relative weighting was ultimately for the decision-maker to determine.
Direction 99 set out a number of considerations which, subject to the decision-maker’s determination of relevance, the decision-maker was required to take into account. Paragraph 8 described five “primary considerations”, the first of which was, “protection of the Australian community from criminal or other serious conduct”. Paragraph 8.1 then dealt with the application of that primary consideration, providing at paragraph 8.1(1) that, “decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”.
Paragraph 8.1(2) then provided:
Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The first of the factors under paragraph 8.1(2), “the nature and seriousness of the non-citizen’s conduct”, was elucidated in paragraph 8.1.1(1) as follows:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
…
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
…
The second factor under paragraph 8.1(2), “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”, was explained in paragraph 8.1.2 as follows:
(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).
…
Several observations may be made about paragraph 8.1 and the succeeding subparagraphs.
First, paragraph 8.1 as a whole was concerned with the primary consideration of, “protection of the Australian community from criminal or other serious conduct”. In that context, the requirement for the decision-maker to consider the factors enumerated in paragraphs 8.1(2), 8.1.1(1) and 8.1.2 was directed towards assessment of the impact of those factors on the protection of the Australian community from criminal or other serious conduct by the non-citizen.
Second, the phrase “nature and seriousness” should be understood as a composite phrase. That is because the nature of criminal offending may affect its seriousness, and the seriousness of such offending may affect its nature.
Third, the “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”, described in paragraphs 8.1(2) and 8.1.1(2) must be considered in light of the decision-maker’s assessment of, “the nature and seriousness of the non-citizen’s conduct to date”, under paragraph 8.1.1(1). That is apparent from the requirement under paragraph 8.1.2(1) that decision-makers 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”. It is also apparent from paragraph 8.1.2(2)(a), which required a decision-maker to have regard to, “the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”. The nature and seriousness of past offending will plainly be relevant to assessment of the harm that could result from further offending by the non-citizen in the future.
Before the Tribunal, the appellant’s closing written submissions included the following:
Protection of the Australian community
8.[The applicant] accepts his criminal history and does not minimise his offending. However, it is important the Tribunal does not mischaracterise his offending, given, inter alia, that any mischaracterisation may lead to an overestimation of his future risk.
9.It is accepted that some of his offences meet the description of being ‘viewed very seriously’ pursuant to para 8.1.1(1)(a) of Direction 99, given they were violent crimes. It is further accepted that some of the offences for which he was sentenced in the Beenleigh District Court on 19 April 2018 were ‘crimes of a violent nature against women’. It is nonetheless apparent that the applicant was acting strangely that night and there was no allegation that he intentionally targeted women rather than men.
10.The respondent, in closing, appeared to suggest there were further ‘crimes of a violent nature against women’. This is not accepted, at least in relation to the following offences:
(a)The enter premises and commit indictable offence (namely, wilful damage) and commit public nuisance of 23 July 2019 at BP Ashmore Village, for which he was sentenced on 3 August 2021…
(b)Two commit public nuisance offences from 23 July 2019, for which he was sentenced on 3 August 2021...
11.While the above involves a discussion of the nature of the offences, the applicant maintains the more relevant inquiry under this consideration is what risk [the applicant] is likely to pose in the future (see para 8.1.2 of Direction 99). Even though there is no psychiatric or psychological report before the Tribunal providing an assessment of his future risk of offending, it is certainly not the case the Tribunal should assume that risk is high or otherwise not low. There is no onus of proof in the Tribunal. The Tribunal can and must make a determination of his future risk based on the evidence before the Tribunal by considering the causes of his past offending, and what has and will be done to address those causes…
…
13. It is submitted that the Tribunal should find that the risk of reoffending in a serious way is not high, and is significantly lowered by the features highlighted above and at the hearing. Ultimately, this consideration pulls less strongly against revocation than in cases where applicants have engaged in more serious, premeditated conduct, and have little interest in reform.
(Footnotes omitted, emphasis added.)
In considering the primary consideration of, “protection of the Australian community”, the Tribunal stated at [29] that the appellant, “concedes that some of his offending is very serious and meets the necessary threshold of being ‘viewed very seriously’ pursuant to paragraph 8.1.1(1)(a) of Direction 99 because the conduct spans violent crimes and violent crimes against women”. The Tribunal went on at [32] to reject the appellant’s submissions that certain other offences were not within that category.
Importantly for the present appeal, the Tribunal then found:
31.The Applicant contends that none of his acts of violence were premeditated, and that his violent crimes against women were not intentionally targeted at women. The Applicant’s purpose in making these submissions is, presumably, to invite me to view his offending less seriously compared to if his crimes were “premeditated” and “targeted”. Respectfully, I reject this invitation. Sub-paragraph 8.1.1(1)(a) requires me to consider the types of crimes committed, not the intention in committing the crimes. The Applicant pled guilty and was convicted of committing numerous violent crimes and crimes of a violent nature against women. The circumstances of the Applicant’s offending in these regards moved his Honour Judge Chowdhury to note the “very serious” nature the Applicant’s conduct.
32.In my view, the Applicant’s conduct clearly involves repeatedly committing violent crimes and crimes of a violent nature against women. Accordingly, my finding is that the Applicant’s offending engages sub-paragraph 8.1.1(1)(a)(i) and is property [sic] characterised as “very serious”.
…
(Footnotes omitted, emphasis added.)
It may be seen that at [31], the Tribunal recognised that the appellant’s submission invited the Tribunal to view his offending as less serious than it would have been if premeditated and intentionally targeted towards women. The Tribunal determined to “reject this invitation” on the basis that paragraph 8.1.1(1)(a) required the Tribunal, “to consider the types of crimes committed, not the intention in committing the crimes”. It will be recalled that paragraph 8.1.1(1)(a) required that in considering, “the nature and seriousness of the non-citizen’s criminal offending or other conduct to date”, decision-makers must have regard to the factor that, “the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community”. The crimes then described included, relevantly, (i) “violent” crimes; and (ii) “crimes of a violent nature against women”.

It is true that paragraph 8.1.1(1)(a) only required consideration of “the types of crimes” committed. For that provision to be engaged, a decision-maker was only required to consider, relevantly, whether the appellant had committed violent crimes and crimes of a violent nature against women. The circumstances in which those crimes were committed were irrelevant to engagement of that provision. Once the Tribunal determined that some of the appellant’s crimes were in those categories, it was required to have regard to the fact that those types of crimes, “are viewed very seriously by the Australian Government and the Australian community”.
However, the view of the Australian Government and the Australian community was only one of the factors bearing upon the Tribunal’s assessment of “the nature and seriousness of the non-citizen’s conduct”. The Tribunal’s conclusion that the circumstances in which the crimes were committed were irrelevant to the application of paragraph 8.1.1(1)(a) did not mean that it was not required to otherwise consider the appellant’s submission concerning lack of premeditation and targeting in its application of paragraphs 8.1.1(1) and 8.1.2.
The Minister submits that the Tribunal’s reasons ought to be read beneficially, and that the reasons at [31] should be understood as indicating that the Tribunal did consider the appellant’s submission that the absence of premeditation and intentional targeting of women made his offending less serious, but rejected that submission on its merits.
However, the Tribunal’s reasons offer no support for the Minister’s submission. The reasons contain no discussion of the merits of the appellant’s submission concerning premeditation and absence of intentional targeting of women. It is apparent that at [31] the Tribunal rejected the appellant’s invitation to view his offending less seriously solely on the basis that paragraph 8.1.1(1)(a) only required consideration of the types of crimes committed and not any other factors such as lack of intention or premeditation.
That the Tribunal reasoned in such a way is reinforced at [32] where its statement that the appellant’s conduct involved, “repeatedly committing violent crimes and crimes of a violent nature against women”, was immediately followed by, “[a]ccordingly, my finding is that the [appellant’s] offending engages sub-paragraph 8.1.1(1)(a)(i) and is property [sic] characterised as ‘very serious’”. The word “accordingly” means “therefore” (see the Macquarie Dictionary Online) and indicates that the Tribunal considered that the appellant’s offending must be characterised as “very serious” because it engaged paragraph 8.1.1(1)(a)(i) (and (ii)).
In so ruling, the Tribunal misconstrued paragraph 8.1.1. It misconstrued paragraph 8.1.1(1)(a) because that provision does not require the Tribunal to characterise offending as “very serious”. Paragraph 8.1.1(1)(a) only requires that decision-makers “have regard to”, relevantly, the view of the Australian Government and the Australian community that “violent” crimes and “crimes of a violent nature against women” are “very serious”. It is evident that such crimes may range from common assault to murder and that their seriousness and nature may also vary widely. The Tribunal was not bound by the expressed view of the Australian Government and the Australian community to regard the appellant’s offending as “very serious”. The Tribunal was required to assess for itself, “the nature and seriousness of the non-citizen’s criminal offending”, and the weight that should be attributed to that factor.
After rejecting the relevance of the appellant’s submission that his offending should be viewed less seriously than if his crimes were premeditated or intentionally targeted women at [31] and [32], the Tribunal did not mention that submission again. The inference to be drawn is that the Tribunal did not consider that submission in any other context.
The relevant parts of the appellant’s written submissions to the Tribunal appeared under the heading, “Protection of the Australian community”. In that context, the appellant submitted that, “it is important the Tribunal does not mischaracterise his offending, given, inter alia, that any mischaracterisation may lead to an overestimation of his future risk”. Accordingly, those submissions were directed in part to, “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”, under paragraph 8.1(2).
The appellant’s submissions then accepted that some of his offences met, “the description of being viewed very seriously”, pursuant to paragraph 8.1.1(1)(a) of Direction 99, as “violent” crimes, and “crimes of a violent nature against women’”. The submission continued by saying there was no allegation that he had intentionally targeted women rather than men. The submission was, clearly enough, that even though the Australian Government and community viewed such offences “very seriously”, the Tribunal should not regard the appellant’s offending as being “very serious” because he had not intentionally targeted women.
The appellant’s submissions continued by saying, “[w]hile the above involves a discussion of the nature of the offences, [the appellant] maintains the more relevant inquiry under this consideration is what risk [the appellant] is likely to pose in the future (see para 8.1.2 of Direction 99)”. The appellant submitted that the Tribunal should find that the risk of reoffending “in a serious way” was not high. He then submitted that, “this consideration pulls less strongly against revocation than in cases where applicants have engaged in more serious, premeditated conduct, and have little interest in reform”. The phrase “this consideration” must refer to the “primary consideration” of “protection of the Australian community”.
It may be seen that the appellant’s submission that he had not intentionally targeted women was directed, first, to what weight the Tribunal should give to the views of the Australian Government and community expressed in paragraph 8.1.1(1)(a); second, to the Tribunal’s own assessment of “the nature and seriousness of [his] past offending”; and, third, to, “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”. The appellant’s submission that his criminal offending was not premeditated was also advanced as a factor going to the “risk to the Australian community…”.
The Tribunal failed to understand the relevance of the appellant’s submission that his offending should be viewed by the Tribunal as less serious in the absence of premeditation and intentional targeting of women. In Plaintiff M1/2021, the plurality held at [24], “there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations”. The plurality added at [27] that if the decision-maker, “ignored, overlooked or…misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error”.
In LPDT HC, the plurality of the High Court held at [34] that the Tribunal had erred in relation to paragraph 8.1.1(1)(a) of Direction 90, by misunderstanding the provision, or the appellant’s conduct, or both; in relation to paragraph 8.1.1(1)(b) because it was not possible to comprehend how the Tribunal made its findings; and in relation to paragraph 8.1.1(1)(g), by applying that paragraph when there was no evidence showing that it did apply.
The plurality held at [33]:
The error of the Tribunal was a breach by a statutory decision-maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.
(Emphasis added.)
In the present case, there were two overlapping errors in the Tribunal’s reasoning. First, it wrongly construed paragraph 8.1.1(1)(a) as meaning that where that paragraph was engaged, the past offending of the non-citizen must be regarded by the Tribunal as “very serious”. Second, it failed to understand the relevance of the appellant’s submission that his criminal offending was not premeditated and targeted towards women and accordingly failed to evaluate the merits of that submission.
There was no error in the primary judge’s conclusion that the Tribunal had made the identified errors. The Notice of Contention must be rejected.
Notice of Appeal – Ground 1
The first ground of the Notice of Appeal alleges that the primary judge erred in concluding that the errors found by the Court were not material to the Tribunal’s decision and were therefore not jurisdictional errors.
In LPDT HC, the plurality observed at [8] that in view of apparent uncertainty or confusion about the meaning and effect of some of the language used by the High Court in identifying the principles to be applied in assessing materiality, it was desirable to give practical guidance.
The plurality (Beech-Jones J agreeing) then gave the following summary of the relevant principles:
13The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
14The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
15What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
(Citations omitted, emphasis in original.)
The plurality turned to consider the reasoning in LPDT FFC, observing that the Full Court had found error in the Tribunal’s consideration of paragraph 8.1.1 of Direction 90, but held that the error was not material to the Tribunal’s decision. It is instructive to consider the plurality’s analysis of the Full Court’s reasoning:
29Having found the Tribunal so erred, the Full Court then identified other aspects of the Tribunal’s reasons as bases for assuming that the Tribunal would have adopted a different process of reasoning to the same end and, on that basis, concluded that the error was not material. By way of example, the Full Court reasoned that, “even if the Tribunal had concluded that sub-paragraph (a) was entirely irrelevant and moved on”, the Full Court did not consider that there was “a realistic possibility” that the Tribunal could have found the appellant’s conduct to be merely “serious” in considering the nature and seriousness of his conduct under paras 8.1(2)(a) and 8.1.1(1), or that the weighing exercise under para 8.1.1(1) could have had a “favourable outcome” for the appellant even if the Tribunal did assess his conduct to be “serious”. Both of these findings involved the Full Court making assumptions about how the Tribunal would have undertaken the weighing exercise of the matters in para 8.1.1(1). Such approaches should not be adopted. A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.
(Emphasis added.)
The plurality emphasised the contribution made by the Tribunal’s errors to the Tribunal’s assessment of the primary consideration of “protection of the Australian community” and to its ultimate decision:
35Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal’s assessment of Primary Consideration 1, and in that the Tribunal’s assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant’s visa. The Tribunal’s error in its process of reasoning in these respects alone established that the error was material.
36It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made…
In the present case, the primary judgment was delivered on 28 March 2024 and (appropriately) applied the judgment of the Full Court of the Federal Court in LPDT FFC. However, the judgment of the Full Court was subsequently reversed by the High Court in LPDT HC on 10 April 2024.
The primary judge stated that the appellant bore the burden of proving, on the balance of probabilities, that there was a “realistic possibility” that the Tribunal’s decision could have been different if it had not made the error. Her Honour proceeded to reject the appellant’s submission that the error was material for the following reasons:
32First, in reaching its conclusion as to the nature and seriousness of the applicant’s conduct to date, the Tribunal had regard to other considerations, including that:
Ÿthe applicant had committed crimes against vulnerable members of the community (i.e. the elderly) and government representatives (i.e. a police officer), pursuant to paragraph 8.1.1(1)(b)(ii) of the Direction;
Ÿthe applicant received multiple sentences for violent and other crimes, including sentences of more than five terms of imprisonment, pursuant to paragraph 8.1.1(1)(c) of the Direction; and
Ÿthe frequency of the applicant’s offending and trend of increasing seriousness, and the cumulative effect of the applicant’s repeated offending, pursuant to paragraphs 8.1.1(1)(d) and (e) of the Direction.
33Second, in reaching its conclusion that Primary Consideration 1 carries “a very heavy weight against revocation”, the Tribunal took into account other key findings in addition to its finding with respect to the nature and seriousness of the applicant’s offending. The Tribunal placed particular emphasis on its findings regarding the risk posed to the Australian community should the applicant commit further offences or engage in other serious conduct, and the absence of “any expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant”: see [57] of the reasons.
34It is apparent from the Tribunal’s reasons that these key findings did not flow from its finding as to the nature and seriousness of the applicant’s conduct, because the latter finding turns on the applicant’s conduct to date while the former findings concern the likelihood of harm in the future, which likelihood includes taking into account the absence of satisfactory evidence of rehabilitation.
(Emphasis in original.)
The first reason seems to have involved a finding that even if the Tribunal had evaluated the appellant’s submission that the Tribunal should assess his criminal offending as less serious in the absence of premeditation and intentional targeting of women, there was no “realistic possibility” of the Tribunal making a different assessment of, “the nature and seriousness of [the appellant’s] criminal and other conduct to date”. That finding involved speculation that the Tribunal regarded the appellant’s criminal conduct as so serious that its assessment could not have been affected by taking the submission into account. That type of reconstruction of the decision-making process was disapproved in LPDT HC at [29] and [36].
The second reason given by the primary judge was that the Tribunal placed “particular emphasis” on its findings regarding, “the risk posed to the Australian community should the applicant commit further offences or engage in other serious conduct”, and the absence of expert and independent clinical evidence concerning rehabilitation. Her Honour found that, “these key findings did not flow from its finding as to the nature and seriousness of the applicant’s conduct”, thereby indicating that the finding concerning risk to the Australian community was a separate or independent basis for determining that, “the risk that may be posed by the non-citizen to the Australian community”, under paragraph 8.1.2(2) weighed heavily in favour of non-revocation. However, assessment of the, “nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”, required the Tribunal to take into account the nature and seriousness of the appellant’s past criminal offending. Therefore, the Tribunal’s findings concerning, “the risk that may be posed by the non-citizen to the Australian community”, did not provide an entirely separate or independent basis for determining that, “protection of the Australian community”, weighed heavily in favour of non-revocation which operated to overcome the error.

The inferences available are that either the Tribunal found, as was undisputed, that the Anuak language was widely spoken in the Gambela region; or found that the Anuak language was widely spoken outside the Gambela region, when there was no evidence for such a finding. The Court is not “astute to discern error” in the reasons of an administrative decision-maker: Plaintiff M1/2021 at [38]. In the context that the case advanced before the Tribunal was that the appellant would be living in the Gambela region and that it was open to the Tribunal to regard Gambela as being in the western part of Ethiopia, it should be inferred that the Tribunal’s finding that, “Anuak is…widely spoken in the western part of Ethiopia”, referred only to the Gambela region, and not to any other regions.
The appellant has not demonstrated the error asserted in his second ground of appeal. That ground must be rejected.
Notice of Appeal – Ground 3
Ground 3 of the Notice of Appeal alleges that the primary judge erred in failing to uphold the third and fourth grounds of the amended application by:
(a)erroneously concluding that the risk of harm faced by the appellant in Ethiopia was irrelevant to paragraph 9.2 of Direction 99;
(b)finding that the Tribunal considered the appellant’s representation regarding the risk of harm if returned to Ethiopia; and
(c)finding that the alleged error was immaterial.
The third ground of the appellant’s amended application asserted that the Tribunal failed to properly carry out the inquiry required by paragraph 9.2(1) of Direction 99 by failing to consider the risk of harm faced by the appellant if removed to Ethiopia, including the extent of impediments faced by the appellant if, due to a risk of persecution or serious harm, he had to resettle outside of the Gambela region. The fourth ground was that, in the alternative, the Tribunal failed to evaluate the appellant’s representations that the risk of suffering persecution or serious harm was an impediment he would face if removed from Australia. The primary judge noted that the appellant’s counsel described these grounds as alternative ways of characterising the same error.
The Tribunal observed at [92] that, under paragraph 9.1.2(1) of Direction 99, where an applicant makes representations about international non-refoulement obligations, such claims “must be considered”, and that the appellant had made such representations. The Tribunal noted that the appellant claimed to be owed non-refoulement obligations under the Refugees Convention and ss 36(2)(a) and (aa) of the Act and that those obligations would be breached if he were returned to Ethiopia.
The Tribunal observed that in Plaintiff M1/2021, the plurality had stated that the decision-maker is permitted, but generally not required, to consider non-refoulement claims as part of the request for revocation of the mandatory cancellation if the applicant can apply for a Protection visa. The Tribunal noted that the appellant had submitted that it was, “appropriate for the Tribunal to consider these matters in this proceeding given they also coincide and overlap with another consideration under Direction 99, namely, extent of impediments”.
However, the Tribunal concluded that:
103.Based on what is before me, I do not consider that the Tribunal is not in an optimal position to make a finding about whether the Applicant is in need of complementary protection. The Applicant is not precluded from applying for a protection visa. If he does, then his claims can be more comprehensively assessed in that process, and I am of the view that that is the appropriate course.
Paragraph 9.1(2) of Direction 99 stated:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
Paragraph 9.1.1 dealt with, “Non-citizens covered by a protection finding”. Although the appellant had been granted a Refugee visa, neither the parties’ submissions to the Tribunal nor to the Court suggested that this paragraph applied. The parties’ submissions proceeded on the basis that it was paragraph 9.1.2, which had the heading, “Non-citizens not covered by a protection finding”, that applied. Paragraph 9.1.2(2) provided:
However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(Emphasis added.)
The primary judge rejected the appellant’s third and fourth grounds for, relevantly, the following reason:
72Paragraph 9.2(1) of the Direction is concerned with impediments that an applicant may face in establishing themselves and maintaining basic living standards. I accept the Minister’s submission that paragraph 9.2(1) does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c).
The appellant submits that his claim that he would suffer harm due to his Anuak ethnicity ought to have been considered by the Tribunal as part of the “extent of impediments if removed” under paragraph 9.2 of Direction 99. The appellant submits that his claims before the Tribunal included that: Anuak people are discriminated against and are “still dying”, Anuak are treated “badly” everywhere; Anuak are being killed, bashed and denied services like access to taxis and transport in Addis Ababa; Ethiopians can tell the appellant is Anuak by the darker colour of his skin; there continues to be ongoing violence in the Gambela region against Anuak people and a real risk of deprivation of life; he would likely face violence and discrimination as an Anuak even elsewhere in Ethiopia; and the Ethiopian government cannot provide effective measures against persecution and discrimination; and government officials have perpetrated violence. The appellant submits that the Tribunal failed to consider whether the various asserted forms of discrimination against Anuak people would be an impediment to the appellant establishing himself and maintaining basic living standards in Ethiopia.
The Minister submits that paragraph 9.2 did not require the taking into account of all detriment that a person may face if returned to their home country. The Minister submits that the appellant advanced no case before the Tribunal that on account of discrimination due to his Anuak ethnicity he would face forms of harm or detriment that would not meet the Protection visa criteria, but would cause him impediments in terms of establishing himself and maintaining basic living standards. Instead, the asserted discrimination was always put forward as part of his claim that non-refoulement obligations were owed to him. The Minister argues that, consequently, there was no obligation for the Tribunal to consider any asserted discrimination.
In Plaintiff M1/2021, the plurality held:
29Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia’s domestic law.
30Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
…
37Contrary to the plaintiff’s submissions, the Delegate’s reasons do not reflect a misunderstanding of the operation of the Migration Act. For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff’s claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
38The Court is not “astute to discern error” in the reasons of an administrative decision-maker. The Delegate’s reasons convey that the Delegate had read and understood the plaintiff’s claim and proceeded on the basis that non-refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non-refoulement obligations as “another reason” for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness.
39Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
Accordingly, it is open to a decision-maker to defer assessment of a claim that a non-citizen is owed non-refoulement obligations to the Protection visa process. It may nevertheless be necessary for the decision-maker to take account of facts alleged to underpin a claim that non-refoulement obligations are owed where those facts are relied upon as another basis for revocation of the cancellation decision. It is therefore necessary for the Tribunal to distinguish between a representation that a reason for revocation is that the non-citizen is owed non-refoulement obligations and a representation that facts underpinning such asserted non-refoulement obligations are relevant on a different basis. A decision-maker may be required to take into account a claim relying on such underpinning facts where the claim is the subject of a clearly articulated representation or clearly arises on the material: cf Plaintiff M1/2021 at [25].
The engagement of paragraph 9.2 required not only a claim that the appellant would face impediments that, “arise from the [appellant’s] age, health, or language or cultural barriers in the context of any social, medical or economic support available in the home country”, but also a claim that that they are impediments that he, “may face in establishing [himself] and maintaining basic living standards”: see GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [55]–[56]; GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [42]–[43].
In respect of “extent of impediments if removed” under paragraph 9.2, the appellant made the following submission to the Tribunal:
The applicant also iterates that if the Tribunal decides it is not going to consider the effect of visa cancellation on Australia’s domestic and international non-refoulement obligations during this process, then the likely harm he will suffer due to his Anuak ethnicity must still nonetheless be considered as part of the ‘Extent of Impediments if Removed’ under Direction 99. A serious risk of violence and/or persecution is clearly an ‘impediment’ to establishing oneself and maintaining basic living standards.
The submission that paragraph 9.2 was engaged by the harm the appellant would likely suffer due to his Anuak ethnicity was only based upon facts underlying his claim that he was owed non-refoulement obligations. There was no clearly articulated submission that the appellant might face discrimination or persecution at a level lower than would be sufficient to engage protection or complementary obligations which would be an impediment to establishing himself and maintaining basic living standards. Neither did such a proposition clearly arise on the material before the Tribunal. There was no error in the Tribunal’s failure to the appellant’s claims that he was owed non-refoulement obligations, or the facts underpinning that claim, in the context of paragraph 9.2.
It is unnecessary to consider the challenge to the primary judge’s conclusion that even if the appellant had demonstrated that the Tribunal made the asserted errors, they would have been immaterial.
The appellant has not demonstrated the errors in the primary judge’s reasons asserted in his third and fourth grounds.
Conclusion
The appellant has established the first ground asserted in the Notice of Appeal.
The appeal must accordingly be allowed. The judgment of the primary judge will be set aside.
Orders will be made that a writ of certiorari issue quashing the Tribunal’s decision, and that a writ of mandamus issue requiring the Tribunal determine the appellant’s request for revocation according to law.
The Minister will be ordered to pay the appellant’s costs of the appeal and the proceeding before the primary judge.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah and Rofe.
Associate:
Dated: 19 February 2025
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction

I have had the significant advantage of reading and considering the reasons for judgment of Rangiah and Rofe JJ. I agree with their Honours that the appellant’s second and third grounds of appeal should be dismissed for the reasons given by them.
I do, however, disagree with their Honours in relation to the disposition of the Minister’s notice of contention and ground one of the appeal.
The issue raised by the notice of contention and ground one of the appeal
The precise issued raised by the notice of contention and ground one of the appeal is whether the Tribunal erred by failing to evaluate the appellant’s submission that his offending was not premeditated and did not target women such that his offending ought not to be regarded as seriously as it was.
As the reasons of the majority identify, the appellant’s submission that his offending should be regarded as less serious because it did not involve premeditated targeting of women, was apparently directed to paragraph 8.1 of Direction 99 and, more specifically, subparagraphs 8.1(2) and 8.1.1(1). The first required that the decision-maker should give consideration to the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should that person engage in further offences or other serious conduct. The latter relevantly provided that, in considering the nature and seriousness of the non-citizen’s criminal offending, the decision-maker should have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
…
In relation to the Tribunal’s evaluation of the matters raised by paragraph 8.1(2), part of the appellant’s submissions included the following:
Protection of the Australian community
8.[The applicant] accepts his criminal history and does not minimise his offending. However, it is important the Tribunal does not mischaracterise his offending, given, inter alia, that any mischaracterisation may lead to an overestimation of his future risk.
9.It is accepted that some of his offences meet the description of being ‘viewed very seriously’ pursuant to para 8.1.1(1)(a) of Direction 99, given they were violent crimes. It is further accepted that some of the offences for which he was sentenced in the Beenleigh District Court on 19 April 2018 were ‘crimes of a violent nature against women’. It is nonetheless apparent that the applicant was acting strangely that night and there was no allegation that he intentionally targeted women rather than men.
(Footnote omitted).
In relation to this submission, the Tribunal observed:
31.The Applicant contends that none of his acts of violence were premeditated, and that his violent crimes against women were not intentionally targeted at women. The Applicant’s purpose in making these submissions is, presumably, to invite me to view his offending less seriously compared to if his crimes were “premeditated” and “targeted”. Respectfully, I reject this invitation. Sub-paragraph 8.1.1(1)(a) requires me to consider the types of crimes committed, not the intention in committing the crimes. The Applicant pled guilty and was convicted of committing numerous violent crimes and crimes of a violent nature against women. The circumstances of the Applicant’s offending in these regards moved his Honour Judge Chowdhury to note the “very serious” nature the Applicant’s conduct.
(Footnotes omitted).
It is said that, in taking this approach, the Tribunal did not appropriately consider the appellant’s submission when reaching its conclusion as to the nature and seriousness of his offending.
The context in which the issue arose
There is always a danger that where an issue is considered on appeal in isolation from the case as a whole, a natural distortion arises as to its overall relevance. Indeed, there is a risk of that happening in the present case. It should not be forgotten that the appellant had a long and extensive criminal history involving a number of serious offences for which he was imprisoned. Those offences were set out at length by the Tribunal and the discussion of the more serious offences included lengthy reference to the sentencing remarks by the judges who imposed the sentences on the appellant. In the course of its reasons, the Tribunal identified (at [28]) the Minister’s submission that the appellant’s offending was very serious and that this was “well supported by the evidence”. With respect, that is a self-evident conclusion.

The appellant accepted that he had committed crimes and that some of those were against women, however, he submitted that they did not fall into the category of being “crimes of a violent nature against women” within the meaning of Direction 99. It is apparent that the submission being advanced was that the words, “crimes of a violent nature against women”, in paragraph 8.1.1(1)(a) of the Direction, were not concerned with crimes of a violent nature which were perpetrated against women. Rather, they were concerned with offences of a premeditated nature which were specifically directed towards women. This was the context in which the Tribunal said (at [31]) that it rejected the appellant’s invitation to consider his assertion that his offending should be regarded less seriously because it was not of the nature with which he claimed paragraph 8.1.1(1)(a) was concerned.
The Tribunal was correct as to its interpretation of the Direction
With great respect to those who adopt a different view, the terms of paragraph 8.1.1(1)(a) are clear. Importantly, they are concerned with the laudable and important topic of the protection of women from violence. In the consideration of the seriousness of a non-citizen’s offending, the decision-maker is required to take into account whether the offending included “crimes of a violent nature against women”. If such circumstances exist, the person must take into account that the Australian community and the Australian Government view such crimes as “very serious”. There is nothing in that expression or the context of the Direction which warrants reading the paragraph down so that it is limited to premeditated crimes deliberately targeted to women. To do so would severely undermine the importance which the Direction attaches to the protection of women. Whilst the premeditated targeting of women with acts of violence is particularly heinous, the ordinary or natural reading of paragraph 8.1.1(1)(a) is that it appropriately identifies all crimes of violence against women as being worth unambiguous opprobrium.
In this context, the Tribunal was entirely correct to view the appellant’s violent offending against women as meeting the requirements of paragraph 8.1.1(1)(a). The Tribunal held the following at [32]:
In my view, the Applicant’s conduct clearly involves repeatedly committing violent crimes and crimes of a violent nature against women. Accordingly, my finding is that the Applicant’s offending engages sub-paragraph 8.1.1(1)(a)(i) and is property characterised as “very serious”.
This analysis was entirely in accordance with the Direction. The Tribunal was not required to consider whether the offending was premeditated and directed against women. All that was required to be ascertained was whether it was of a violent nature and committed against women. In that respect, the Tribunal’s inclusion of the transcript of the sentencing hearing before Chowdhury DCJ on 19 April 2018 renders unarguable the Tribunal’s conclusion that subparagraph 8.1.1(1)(a) was satisfied. Indeed, it might have been considered bizarre were the Tribunal to have come to any other conclusion.
The Tribunal was entitled to conclude that the appellant’s commission of multiple violent offences against women rendered the appellant’s criminal offending as being “very serious”. Indeed, in so doing it was entitled to align its conclusion in that respect to the indication in the Direction that such conduct was viewed in that manner by the Australian community and the Australian Government. It did this by its use of the word, “accordingly”, and made no error by doing so. It was not, by the use of that word, indicating that it was obliged to make the finding, but merely that the Direction had provided a direct link to that conclusion. Again, given the evidence of the appellant’s repeated violent offending towards women it is most unlikely that the Tribunal could have reached any other conclusion.
The rejection of the appellant’s submission that the Tribunal should consider his offending as being less serious because it was not premeditatedly directed towards women, was entirely correct. The Direction requires the decision-maker to consider the offending in which the appellant actually engaged, not more serious offending in which he might have engaged but did not. Here, the Tribunal directed its attention to the appellant’s repeated serious offending over a period of time and, particularly, that some of it was of a violent nature and against women. As such it was found to be squarely within the concept of “very serious”.
Contrary to the appellant’s construction of paragraph 8.1.1(1)(a), it was not necessary to consider whether the offending against women was premediated and directed at them and, if it did not have that character, that it would be regarded as less serious. Were it of that character, it might well have been regarded as even more serious, but that was not suggested. In this way, it was similarly irrelevant that the repeated violence was not directed to persons who were of a particular ethnic, racial, social or political group. Had that been the case, the offending might have been seen in a more serious light, but as such matters were not suggested to be part of the offending, consideration of them was not relevant.
Conclusion
The Tribunal did consider the appellant’s submission and, having evaluated it, correctly concluded that it was not relevant to the proper construction of paragraph 8.1.1(1)(a) of Direction 99. In this manner, the Tribunal adopted a correct construction and was not distracted from the decision-making process by addressing irrelevant matters.
In the result, the notice of contention should be allowed, with the concomitant result being that ground one of the appeal should fail.
The appropriate orders are that the appeal be dismissed and that the appellant pay the first respondent’s costs of the appeal.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.
Associate:
Dated: 19 February 2025

Appeal from:	BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301
File number:	QUD 211 of 2024
Judgment of:	RANGIAH, DERRINGTON AND ROFE JJ
Date of judgment:	19 February 2025
Catchwords:	MIGRATION – where Administrative Appeals Tribunal (Tribunal) affirmed decision not to revoke cancellation of visa under s 501CA(4) of the MigrationAct 1958 (Cth) – whether Tribunal failed to consider representations made by appellant – whether errors were material – whether Tribunal made a finding unsupported by evidence – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 5J(1)(c), 36, 499(1), 499(2A), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3), 501CA(3)(b), 501CA(4) and 501CA(4)(b)
Cases cited:	BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301 Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 CNY17 vMinister for Immigration and Border Protection (2019) 268 CLR 76 GBV18 v Minister for Home Affairs (2020) 274 FCR 202 GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 MZAPC vMinister for Immigration and Border Protection (2021) 273 CLR 506 PlaintiffM1/2021 v Minister for Home Affairs (2022) 275 CLR 582 Wilson TransformerCo Pty Ltd v Anti-Dumping Review Panel (2022) 290 FCR 1
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	196
Date of hearing:	23 August 2024
Counsel for the Appellant:	Mr G Rebetzke
Solicitor for the Appellant:	Prisoners’ Legal Service
Counsel for the First Respondent:	Mr B McGlade
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDER MADE BY:	RANGIAH, DERRINGTON AND ROFE JJ
DATE OF ORDER:	19 FEBRUARY 2025

The legislative scheme	[6]
The Tribunal’s decision	[21]
The primary judgment	[40]
The grounds of appeal and contention	[53]
The submissions	[55]
*The Notice of Contention*	[55]
*The Notice of Appeal*	[61]
Ground 1	[61]
Ground 2	[69]
Ground 3	[75]
Consideration	[83]
*The Notice of Contention*	[83]
*Notice of Appeal – Ground 1*	[118]
*Notice of Appeal – Ground 2*	[146]
*Notice of Appeal – Ground 3*	[158]
Conclusion	[175]