EIX18 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 706

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 706

File number: PEG 167 of 2023

Judgment of: JUDGE LADHAMS

Date of judgment: 8 August 2024

Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s bridging visa – where the applicant seeks to also challenge the delegate’s decision under the ancillary or original jurisdiction of the Court – whether the Court has jurisdiction to review the delegate’s decision – the Court does not have jurisdiction to review the delegate’s decision – whether the Tribunal constructively failed to exercise its jurisdiction, or denied the applicant procedural fairness by misconstruing the evidence – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal decision and reasoning was unreasonable – whether the Tribunal asked itself the wrong question or took into account an irrelevant consideration – no jurisdictional error in the Tribunal decision – application dismissed.

Legislation:
Constitution s 75

Migration Act 1958 (Cth) ss 48B, 116, 119, 123, 124, 195A, 417, 474, 476, 476A, 477, 501, 501CA

Migration Regulations 1994 (Cth) reg 2.43, Sch 2, cll 050.212, 050.512

Cases cited:
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; [1979] FCA 21

EIX18 v Minister for Immigration [2020] FCCA 619

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202

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

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Pearson v Minister for Home Affairs (2022) 295 FCR 177; [2022] FCAFC 203

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 96 ALJR 497; [2022] HCA 17

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 408 ALR 503; [2023] FCAFC 10

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Verma v Minister for Immigration and Border Protection (2018) 262 FCR 514; [2018] FCAFC 87

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51

XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256; [2022] FCAFC 6

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248

Division: Division 2 General Federal Law

Number of paragraphs: 167

Date of last submission: 12 March 2024

Date of hearing: 31 January 2024

Place: Perth

Counsel for the Applicant: Mr M Crowley

Solicitor for the Applicant: AUM Legal

Counsel for the First Respondent: Ms N Wootton

Second Respondent: Submitting appearance by the second respondent, save as to costs

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

PEG 167 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EIX18

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:
1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION

The applicant held a Bridging visa E (subclass 050) (bridging visa), which was cancelled by a delegate of the Minister under s 116(1)(g) of the Migration Act 1958 (Cth) (Migration Act). That decision was affirmed by the Administrative Appeals Tribunal (Tribunal) and the applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act.
The applicant presses five grounds. The first ground purports to invite the Court to exercise ancillary jurisdiction to judicially review the delegate’s decision. The applicant alleges that the delegate’s decision to cancel the applicant’s bridging visa was vitiated by jurisdictional error because the jurisdictional precondition in s 124(2) of the Migration Act to the exercise of the Minister’s power under s 116 was not fulfilled as the time period during which the applicant was invited to comment on the contemplated cancellation of his visa was unreasonably short. That ground raises questions as to the Court’s jurisdiction to undertake the review requested by the applicant.
The other four grounds, numbered 3-6, allege jurisdictional error in the Tribunal decision because:
(a)the Tribunal constructively failed to exercise its jurisdiction, or denied the applicant procedural fairness, by misconstruing or misunderstanding the evidence in relation to whether the applicant had been granted a protection visa and whether the Immigration Assessment Authority (Authority) had made adverse credibility findings against the applicant;
(b)the Tribunal denied the applicant procedural fairness or constructively failed to perform the duty to review the delegate’s decision because the dispositive issue of whether the applicant posed an unacceptable risk of reoffending was never raised;
(c)the Tribunal’s decision and reasoning process was unreasonable; and
(d)the Tribunal asked itself the wrong question or took into account an irrelevant consideration.
For the reasons explained below, I have found that:
(a)the Court does not have jurisdiction to judicially review the delegate’s decision;
(b)the applicant has not established that the Tribunal made a jurisdictional error; and
(c)even if the applicant were able to establish that there is a jurisdictional error in the Tribunal decision, relief would be refused on discretionary grounds because there is no utility in issuing writs in relation to the Tribunal decision in this matter.
The application for judicial review is therefore dismissed.
FACTUAL BACKGROUND AND VISA CANCELLATION DECISION
The applicant’s arrival in Australia, grants of bridging visas and protection visa application
The applicant is a non-citizen who entered Australia as an unauthorised maritime arrival on 29 June 2013. Following his arrival, he was granted a number of bridging visas which permitted him to remain in the community.
On 21 April 2017 the applicant applied for a protection visa, which was refused by a delegate of the Minister on 10 October 2017. The Authority affirmed the delegate’s decision on 19 July 2018.
The applicant sought judicial review of the Authority decision and, on 19 November 2018, the applicant applied for a further bridging visa. The applicant was granted the bridging visa on the basis that he satisfied cl 050.212(3A) in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) in circumstances where he made a valid application for a substantive visa that can be granted in Australia and had applied for judicial review of a decision refusing to grant the visa, with such judicial review proceedings having not been completed.
On 19 March 2020 the applicant’s judicial review application was dismissed: EIX18 v Minister for Immigration [2020] FCCA 619.
The applicant’s charge and conviction for an offence
In early May 2019 the applicant was charged with the offence of ‘sexual penetration without consent’, with the date of the offence being 14 April 2019.
Following a guilty plea, the applicant was convicted of this offence on 19 March 2020 and sentenced to a term of imprisonment of three years and nine months.
The cancellation of the applicant’s bridging visa and review by the Tribunal
On 9 May 2019, just days after the applicant was charged with the offence, the applicant was given a notice of intention to consider cancelling a visa in respect of his bridging visa. The document in evidence before the Court shows that the applicant signed the notice to acknowledge that he had received it at 10:42am on 9 May 2019.
Also on 9 May 2019 a delegate of the Minister made a decision to cancel the applicant’s bridging visa under s 116(1)(g) of the Migration Act. The decision record records that:
(a)the applicant received the notice of intention to consider cancelling his visa at 10:42am, which is consistent with the time recorded on his acknowledgement of receiving the notice;
(b)an interview with the delegate commenced at 10:52am; and
(c)the delegate made the decision at 11.00am.
On 20 June 2023 the Department notified the applicant of the decision to cancel his bridging visa. The notification letter records that a notice of cancellation letter dated 9 May 2019 had been given to the applicant by hand, but the Department had assessed the applicant’s case and found that he had not been correctly notified of the decision to cancel his bridging visa.
On 21 June 2023 the applicant applied to the Tribunal for merits review of the delegate’s decision to cancel his visa. The applicant was represented by a lawyer throughout the review.
The applicant appeared before the Tribunal to give evidence and present arguments at hearings convened on 10 July 2023 and 19 July 2023.
On 21 July 2023 the Tribunal affirmed the delegate’s decision to cancel the applicant’s bridging visa. The Tribunal was satisfied that a prescribed ground for cancelling the applicant’s bridging visa under s 116(g) of the Migration Act existed, namely, that in reg 2.43(1)(p) of the Regulations, based on the applicant’s criminal offence. In considering the exercise of its discretion to cancel the applicant’s bridging visa, the Tribunal had regard to the considerations in Ministerial Direction No 63 and, after weighing its findings on the various considerations and considering the applicant’s circumstances as a whole, the Tribunal concluded that the applicant’s bridging visa should be cancelled. To the extent that specific aspects of the Tribunal’s reasoning are relevant to the grounds of application, they are discussed below in the consideration of the applicant’s grounds.
JUDICIAL REVIEW APPLICATION
The applicant’s application for judicial review was filed on 9 August 2023. This is within 35 days of the date of the Tribunal decision, meaning that the judicial review application was made within the time frame prescribed by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 27 November 2023. That application contains 6 grounds, although the applicant indicated in his written submissions that ground 2 is not pressed. The grounds that are pressed are set out below in the consideration of each of the grounds.
The relief sought by the applicant in the amended application includes writs of certiorari and mandamus, as well as the following relief that the applicant asks the Court to grant ‘[i]n the exercise of the ancillary jurisdiction equivalent to that of the High Court of Australia under s 75 of the Constitution’:
1.1.a declaration that the first respondent’s decision purporting to cancel the applicant’s Bridging E (subclass 050) visa granted on 19 November 2018 is invalid;
1.2.a writ of certiorari quashing the first respondent’s decision purporting to cancel the applicant’s Bridging E (subclass 050) visa granted on 19 November 2018;
1.3.a declaration that the second respondent’s decision purporting to affirm the first respondent’s decision purporting to cancel the applicant’s Bridging E (subclass 050) visa granted on 19 November 2018 is invalid;
1.4.a writ of certiorari quashing the second respondent’s decision purporting to affirm the first respondent’s decision purporting to cancel the applicant’s Bridging E (subclass 050) visa granted on 19 November 2018;
1.5.a declaration that the applicant continues to hold a Bridging E (subclass 050) visa immediately and is not an unlawful non-citizen;
1.6. an order that the applicant be released from immigration detention forthwith.
Counsel for the applicant indicated in his oral submissions that the applicant did not press the relief sought at paragraph 1.6. At the hearing, I raised questions with the parties about the relief that they asked the Court to grant, depending on the various possible findings of the Court, and both parties addressed those questions in their oral submissions at the hearing and filed supplementary submissions. The issue of relief is addressed at the end of these reasons.
There is also a question in relation to the Court’s jurisdiction to grant some of the relief sought, and the Court’s jurisdiction to review the delegate’s decision. The Court’s jurisdiction to review the delegate’s decision is relevant only to ground 1 and is addressed in the consideration of that ground below.
The evidence before the Court comprises:
(a)the court book filed by the Minister on 21 September 2023; and
(b)an affidavit of Patricia Ng Phuc Kim filed on behalf of the applicant on 3 January 2024, annexing a transcript of the Tribunal hearing.
GROUND 1
Ground 1 of the amended application reads:
The decision of the first respondent on 9 May 2023 purporting to cancel the applicant’s Bridging E (subclass 050) visa granted on 19 November 2018 (BVE) was vitiated by jurisdictional error in that the jurisdictional precondition at s 124(2) of the Migration Act1958 (Cth) of the first respondent’s power to cancel under s 116 of the Migration Act was not fulfilled, because the first respondent failed to give the applicant the invitation to comment at interview contemplated by s 121, or required the comment at interview within an unreasonably short period of time.
Particulars
1.1The first respondent gave the applicant a written notice of intention to cancel on 9 May 2019 at 10:42 am inviting the applicant to comment at an interview commencing at 10:52 am, and proceeded to cancel the BVE not later than 11 am.
1.2The first respondent knew that the applicant required an interpreter (and in fact arranged for one), and knew that the notice of intention to consider cancellation was a 4-page, double-column, small script and densely-worded document that was practically impossible for the applicant to comprehend in 10 minutes.
It is immediately apparent that the applicant by this ground is seeking review of the delegate’s decision, rather than the Tribunal decision. A question arises as to whether the Court has jurisdiction to conduct a review of the delegate’s decision and both parties addressed this in their submissions.
Applicant’s submissions
The Court’s jurisdiction
In addressing jurisdiction in his first written submissions, the applicant focused on his argument that the Court has ancillary jurisdiction to review the delegate’s decision. The applicant submitted that under s 476 of the Migration Act, the judicial review jurisdiction of this Court is assimilated to that of the High Court under s 75(v) of the Commonwealth Constitution. The applicant submitted that where a Chapter III Court’s original jurisdiction to review decision is engaged, the ancillary jurisdiction reaches to collateral review, and cited in support of this proposition the cases of XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256; [2022] FCAFC 6 (XJLR) at [79]-[87] (Rares J) and [95]-[96] (Yates J); Pearson v Minister for Home Affairs (2022) 295 FCR 177; [2022] FCAFC 203 (Pearson) at [57]; and Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 408 ALR 503; [2023] FCAFC 10 (Tapiki) at [13].
In reply written submissions, the applicant advanced a submission that the Court had original jurisdiction to review the conduct preparatory to the delegate’s decision. He submitted that the High Court held in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 (SZSSJ) that this Court had original jurisdiction to make declarations that visa applicants had been denied procedural fairness where the decision the subject of the declaration fell within the carve out of original jurisdiction under s 476(2)(d) of the Migration Act. The delegate’s conduct of giving just 10 minutes notice of an interview at which the delegate would consider cancellation of the applicant’s visa could be properly understood as a privative clause decision within the meaning of s 474(3)(h), being conduct preparatory to the making of a decision, including the taking of evidence of the holding of an inquiry or investigation. The applicant submitted that, on the authority of SZSSJ, this Court has original jurisdiction.
The applicant further submitted that s 476(2) of the Migration Act limits the original jurisdiction of this Court, but not the ancillary jurisdiction, and therefore a collateral attack to an underlying migration decision is not foreclosed where the original jurisdiction is otherwise engaged. In the present case the Court’s original jurisdiction is properly engaged by reference to the challenges to the Tribunal decision. The applicant submitted that the Court’s ancillary jurisdiction is unaffected where the original jurisdiction is plainly invoked. The words ‘in relation to’ a migration decision in s 476(1) and (2) are not words of expansion but connect the particular relief sought in a matter to a particular migration decision. The original jurisdiction of the High Court under s 75(v) of the Constitution is where relief in the nature of mandamus prohibition or an injunction is sought. Ancillary relief includes certiorari and declaratory relief whether jurisdiction otherwise exists in proceedings where mandamus, prohibition or an injunction is sought. Whether the delegate’s decision is a primary decision or a privative clause decision, the applicant does not seek mandamus, prohibition or an injunction in relation to a migration decision.
The oral submissions advanced by Counsel for the applicant were consistent with the submissions advanced in the applicant’s written submissions and reply submissions filed ahead of the hearing.
The alleged jurisdictional error
In relation to the assertion of jurisdictional error raised by this ground, the applicant submitted that if he was not notified of the proposed cancellation of his visa in accordance with the requirements of s 119 of the Migration Act, the occasion for the exercise of the power contemplated by s 124 of the Migration Act did not arise. The applicant submitted that ss 116, 119 and 124 read together did not authorise the delegate to exercise the cancellation power under ss 116(1)(b) and 123 if the notification contemplated by s 119 had not been given.
The applicant further submitted, relying on Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248 (Zubair), that by presenting him with a densely worded, double sided and double columned document not more than 10 minutes before his interview, the delegate did not afford the applicant a reasonable opportunity to respond to the information, and this also vitiated the cancellation decision under s 116(1)(b) of the Migration Act.

In his oral submissions, Counsel for the applicant submitted, in response to the Minister’s submission that the notification under s 119 was given orally, that there was no evidence to show that the notice was given orally. Counsel for the applicant submitted that if the notice was given orally, that would make things even worse for the Minister, because 10 minutes is a short notice period for such a significant decision and it would not have been possible to orally repeat the words in the notice in 10 minutes.
Minister’s submissions
The Court’s jurisdiction
The Minister submitted that the Court does not have jurisdiction to review the delegate’s decision because the delegate’s decision is a primary decision as defined in s 476(4) of the Migration Act and, pursuant to s 476(2)(a), the Court has no jurisdiction in relation to primary decisions.
The Minister submitted that the applicant’s submission that the Court has ancillary jurisdiction to engage in collateral review of a primary decision is not correct, and that the authorities upon which the applicant relies are not to the point, being decisions relevant to the jurisdiction of the Federal Court under s 476A(1) of the Migration Act in respect of s 501 cancellation decisions. Section 476(2) is in materially different terms to s 476A of the Migration Act.
The Minister submitted that even if the Court did have jurisdiction, there is a further difficulty with the purported attack on the validity of the delegate’s decision, being that the applicant subsequently applied for merits review of the Tribunal decision and the Tribunal affirmed the decision, making it the decision under review in this application. The effect of the Tribunal’s decision is that the delegate’s decision has no continuing legal effect. The validity of the Tribunal’s decision does not depend on the validity of the initial cancellation decision of the delegate. The Minister therefore submitted that it follows that the question of whether the delegate’s cancellation decision was without authority does not affect one way or another the validity of the Tribunal’s decision. The decision of the Tribunal has continuing legal operation in relation to the cancellation of the visa and that is the decision that the applicant must impugn in order to succeed in this application.
In her oral submissions, Counsel for the Minister submitted that the Court does not have original or ancillary jurisdiction to review the delegate’s decision. Under s 476 of the Migration Act, the Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. In circumstances where the applicant seeks mandamus, the Court has ancillary jurisdiction to issue certiorari and declarations in respect of the Tribunal decision. However, it is clear from s 476(2) that the Court does not have any jurisdiction in relation to a primary decision and the delegate’s decision in this matter is a primary decision.
Counsel for the Minister submitted that the applicant’s submissions in relation to SZSSJ are not an accurate reflection of what the High Court decided in that case. The decision the subject of the declaration did not fall within the carve out of the original jurisdiction at all. Rather, there had been a decision by the Minister to consider whether to exercise non-compellable discretionary powers. The applicant in that case sought declaratory relief in relation to an intermediate process. Therefore the carve out of the Court’s jurisdiction did not apply to the preparatory conduct but would apply to the Minister’s decision. Counsel for the Minister submitted that the Court should not accept the applicant’s characterisation of the delegate’s decision as conduct preparatory: first, because that is not what is pleaded; and second, because that is not what is really sought to be challenged. The Minister submitted that in substance, the only decision that is challenged in ground 1 is that of the delegate, and the ground upon which that decision is challenged is an alleged denial of procedural fairness. Procedural fairness does not exist unconnected to something. If the ground of review is procedural fairness, then the relevant decision is the one in respect of which the applicant was entitled to be afforded procedural fairness and that is the delegate’s decision to cancel the visa.
The alleged jurisdictional error
The Minister submitted that, in any event, the alleged jurisdictional error is not made out for three reasons.
First, the Minister submitted that s 119(1)(b) of the Migration Act requires that an applicant be invited to show that the ground for cancellation does not exist or that there is a reason why the visa should not be cancelled. The Minister submitted that this is the invitation that is required and it is an invitation which was given to the applicant orally. It is not the four-page document that is a schedule to the written record that is the notice required. That written notice was merely a record of what had been stated to him in compliance with s 119(1)(b) of the Migration Act. There is therefore no merit to the complaint that the applicant was not given notice in compliance with s 119 of the Migration Act.
Second, the Minister submitted that the applicant was required to be given a reasonable period to respond, and whether a period is reasonable is an objective assessment for the Court. The applicant’s reliance on Zubair is misplaced because the Full Court in that case did not find any period was unreasonable, but rather the passages to which the applicant refers are a summary of background facts. The Full Court did not turn its mind to whether the period given was unreasonable as that question was not an issue in that case.
Third, the Minister submitted that each case turns on its own facts and, in the circumstances of the present case, the period of 10 minutes was not unreasonable. The applicant did not point to any matter that he might have raised but could not have because of the limited time he was afforded and does not advance any substantive reason why the time afforded was not reasonable. The Minister submitted that the time given was reasonable in circumstances where the applicant was not of advanced age, he was provided with an interpreter, there is nothing to suggest he had any medical conditions which may have impacted upon him, he did not request a lawyer at any time, the matters in relation to which the applicant was asked to comment or consider were matters which were entirely within his own knowledge and that there is nothing in the responses given by the applicant to indicate that he did not comprehend or understand the purpose of the interview and he gave coherent reasons why the visa should not be cancelled.
In her oral submissions, Counsel for the Minister again submitted that the notice was given orally and submitted that the applicant had not put on any evidence in opposition to that. Counsel for the Minister submitted that the applicant was not required to read every word that it is suggested he was required to read. All that he was required to read and understand was that required by s 119(1)(b) of the Migration Act.
Does the Court have jurisdiction to consider this ground?
I do not accept that the Court has original or ancillary jurisdiction to review the delegate’s decision to cancel the applicant’s bridging visa, or the conduct preparatory to that decision.
The starting point for considering the Court’s jurisdiction is s 476 of the Migration Act, which relevantly provides:
(1)Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a)a primary decision; …
…
(4)In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or Part 7 or section 500 (whether or not it has been reviewed); …
It is apparent from this that the Court does not have original jurisdiction to review the delegate’s decision.
The applicant’s argument is to the effect that s 476(2)(a) of the Migration Act does not preclude the Court from having ancillary jurisdiction to review the delegate’s decision. I do not accept that argument. It is not consistent with the plain words of s 476(2)(a) of the Migration Act which state that the Court does not have jurisdiction to review a primary decision.
Further, none of the authorities relied upon by the applicant, when considered in their proper factual and statutory context, stand for the proposition that this Court has ancillary jurisdiction to review the delegate’s decision to cancel the applicant’s bridging visa. There are two important features of each of XJLR, Pearson and Tapiki that show they are not directly applicable in this case.
The first is that in each of the cases the Federal Court was exercising jurisdiction under s 476A of the Migration Act, which relevantly provides:
(1)Despite any other law, including section 39B of the Judiciary Act 1903 in section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
…
(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or…
…
(2)Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.
I note that the wording of the relevant parts of ss 476 and 476A of the Migration Act is quite different and that s 476A(1) expressly limits the Federal Court’s original jurisdiction, whereas s 476(2)(a), which denies this Court jurisdiction to review a primary decision, does not expressly distinguish between the Court’s original jurisdiction or other jurisdiction.
Second, the statutory regime under consideration in the three cases referred to by the applicant operates quite differently to the relevant statutory regime in the present case. Each of the three Federal Court cases involved a situation in which a delegate of the Minister had made a mandatory decision under s 501(3A) of the Migration Act to cancel the respective applicant’s visa, the applicant sought revocation of the cancellation decision under s 501CA of the Migration Act, and the Court was considering a decision in respect of the refusal to revoke the mandatory cancellation of the applicant’s visa.
In the statutory scheme considered in XJLR, Pearson and Tapiki, the power to make a decision revoking the cancellation of the applicant’s visa was dependent on there being a valid decision to cancel the applicant’s visa, and this was a jurisdictional fact.
Justice Yates explained in XJLR at [95]-[96]:
95.I agree with Rares J, for the reasons given by his Honour, that s 501CA(1) proceeds on a jurisdictional fact, namely the existence of a legally effective decision under s 501(3A) of the Act. That fact is necessary for the conferral of authority on the decision-maker to exercise the power under s 501CA(4) of the Act to revoke the “original decision”.
96.Given that jurisdiction was conferred on this Court by s 476A(1)(b) of the Act to judicially review the Tribunal’s decision given in a s 500 review, the Court was seized of jurisdiction to consider whether the Tribunal exceeded the jurisdictional bounds of s 501CA(1), which necessarily included consideration of whether the Minister had made a “… decision … under subsection 501(3A)…”
As explained by the Court in Tapiki at [13]:
Applying the decisions in XJLR and Pearson, it follows from the fact that the delegate had no power to cancel Mr Tapiki’s visa under s 501(3A) of the Migration Act that the discretion to revoke the original decision under s 501CA(4) was never enlivened. Accordingly, neither the delegate nor the Tribunal had any power to decide whether the (invalid) cancellation should be revoked.
The present case is markedly different. The Tribunal’s jurisdiction to review the delegate’s decision was not dependent on the legal validity of the delegate’s decision. Rather, in the present case, the Tribunal’s jurisdiction to review the delegate’s decision required that there be a decision in fact, irrespective of whether the delegate denied the applicant procedural fairness: see, for example, Verma v Minister for Immigration and Border Protection (2018) 262 FCR 514; [2018] FCAFC 87 at [40]; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; [1979] FCA 21. This means that, in the present case, the assessment of jurisdictional error in the Tribunal decision is not dependent on the legal validity of the delegate’s decision and it is unnecessary for the Court in reviewing the Tribunal decision to determine, as a jurisdictional fact, whether the delegate’s decision to cancel the applicant’s bridging visa was legally valid. No ancillary jurisdiction to review the delegate’s decision arose in the way that it did in the Federal Court cases relied on by the applicant.
I then turn to the applicant’s submission regarding original jurisdiction. In advancing this submission, the applicant relies on SZSSJ. In SZSSJ, following a data breach by the Department in which personal information of immigration detainees was inadvertently disclosed, officers of the Minister’s Department conducted International Treaties Obligations Assessments (ITOAs). If the ITOA included a determination that the detainee may be owed non-refoulement obligations, there might be a referral of the case to the Minister for consideration of the Minister’s personal and non-compellable discretions in ss 48B, 195A and 417 of the Migration Act. These provisions each conferred a non-compellable personal power that involved two distinct decisions: a procedural decision to consider whether to make a substantive decision, and a substantive decision to grant a visa or lift the statutory bar. The appeal proceeded on the basis that the Minister had made the procedural decision to consider whether or not to exercise the personal non-compellable powers. The question that arose in relation to this Court’s jurisdiction was whether the Court had jurisdiction to review the conduct of the Departmental officers in conducting ITOAs. Any decision of the Minister not to exercise, or not to consider the exercise of, the Minister’s powers in, relevantly, ss 48B, 195A or 417 of the Migration Act was excluded from this Court’s jurisdiction by s 476(2)(d) of the Migration Act. However, the High Court found that the Court had jurisdiction to consider an application for declaratory and injunctive relief on the ground that the ITOA process was procedurally unfair, the ITOA process being conduct that was preparatory to the making of a decision.
To the extent that the applicant’s submission before this Court is understood as being that:
(a)the conduct of the delegate in issuing the notice to consider cancelling the applicant’s bridging visa was conduct preparatory to the making of the delegate’s decision and is a decision within the meaning of s 474(3)(h);
(b)that conduct preparatory is not a primary decision and therefore is not excluded from the Court’s original jurisdiction under s 476(2)(a); and
(c)the Court therefore has original jurisdiction to review the delegate’s decision to cancel the applicant’s bridging visa,
the submission is not supported by the High Court’s reasoning in SZSSJ. In SZSSJ the High Court did not find that the Court had the jurisdiction to consider the Minister’s exercise or non-exercise of his personal non-compellable powers, which was the subject of the carve out of the Court’s jurisdiction. Rather, the effect of SZSSJ is that the process of conducting an ITOA is conduct preparatory to the making of the Minister’s decision and is a separate decision not the subject of the jurisdictional exclusion in s 476(2)(d) of the Migration Act. Any reliance by the applicant on conduct preparatory to the delegate making the decision to cancel the applicant’s bridging visa does not lead to this Court having jurisdiction to review the delegate’s decision to cancel the applicant’s bridging visa.
To the extent that the applicant’s submissions are properly understood as an assertion that the conduct preparatory to the making of a decision, in this case being the giving of the notice of intention to consider cancellation of the applicant’s visa, is itself a separate decision and the Court has original jurisdiction to review that decision, other problems arise for the applicant.
There is a lot of force in the Minister’s submission in response to this that the only relevant ‘decision’ is the delegate’s decision to cancel the visa and the ground relied upon by the applicant is that the delegate denied him procedural fairness. There is also force in the Minister’s submission that the obligation to give procedural fairness has to attach to something, which in this case is the delegate’s decision, and it is not appropriate to treat the giving of the notice as a separate decision.
In any event, however, there is a more fundamental difficulty with the applicant’s attempts to recast the giving of the notice of intention to consider cancellation of the applicant’s bridging visa as a migration decision of the type described in s 474(3)(h) of the Migration Act. Even if I were to overlook the issues that arise from the applicant’s failure to identify this decision in his application or the pleaded grounds (and those issues are not immaterial), there is still the difficulty that the applicant does not seek a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth in relation to the giving of the notice of intention to cancel the applicant’s bridging visa. It therefore is not a decision that would be within the High Court’s original jurisdiction in s 75(v) of the Constitution and it therefore does not come within this Court’s original jurisdiction under s 476(1) of the Migration Act.
For these reasons, the Court does not have original or ancillary jurisdiction to review the delegate’s decision. Given this finding, it is unnecessary to address the parties’ submissions on the jurisdictional error asserted by this ground.
Ground 1 cannot succeed.
GROUND 3
Ground 3 of the amended application reads:
The decision of the second respondent on 21 July 2023 purporting to affirm the first respondent’s decision purporting to cancel the applicant’s BVE was vitiated by a constructive failure to exercise jurisdiction, or was a denial of procedural fairness, in that the second respondent misconstrued or misunderstood the evidence in a fundamental respect.
Particulars
3.1The second respondent fundamentally misunderstood the case presented to it in assimilating to the applicant the circumstances of an altogether different applicant the subject of an Immigration Assessment Authority decision record submitted to the second respondent to illustrate, by way of analogy, the risk posed to another (similarly-situated) Hazara Shia from Afghanistan.
3.2In attributing to the applicant the circumstances of the subject of the IAA decision record, the second respondent mistakenly attributed to the applicant the benefit of a ‘protection finding’ [41]. But the second respondent also attributed to the applicant, or a reasonably bystander might be inclined to wonder whether the second respondent also attributed to the applicant, the significant adverse credibility findings made against the subject of the IAA decision record, such that the bystander might suspect that the second respondent would not bring an open mind to bear in evaluating the applicant’s credibility.
Relevant information before the Tribunal and the Tribunal’s reasons

The applicant’s lawyer provided a number of documents to the Tribunal. One such document was a decision by the Authority in relation to a different visa applicant, which was provided to the Tribunal on 20 July 2023. The covering email provided the following explanation:
We have now attached DFAT Jan 2022 report and one IAA case to support our submissions on the Australian Government’s approach of Hazara Shia since the take over of Afghanistan by the Taliban regime in Aug 2021. The relevant part of the DFAT report and the IAA case has been highlighted for convenient. This is relevant to protection visa and non-refoulement obligations.
In its reasons, the Tribunal referred to the Authority decision provided to it and incorrectly identified it as a decision ‘granting refugee status to the applicant’.
The Tribunal referred to the evidence again in its consideration of the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia. The Tribunal said at [20] of its reasons:
The IAA has found that the applicant would face a real chance of serious harm in Afghanistan and that this harm would involve systematic and discriminatory conduct amounting to persecution.
In the following paragraph, at [21] the Tribunal referred to the applicant having been ‘found to be owed protection’ by the Authority. The Tribunal gave the consideration ‘heavy weight against cancellation’.
The Tribunal also referred to the evidence in considering the degree of hardship that may be caused to the applicant by the cancellation of his bridging visa and said at [25]:
The applicant has addressed this issue in written and oral evidence both personally and from witnesses and from his representative. He argues that indefinite detention will create psychological and emotional hardship to him following his earlier lengthy stay in prison. He will not be able to support his overseas family with remittances it is claimed. For instance, he claims he faces persecution and possible death by stoning if returned to Afghanistan due to his Afghani ethnicity (Hazara) and his criminal history in Australia. The applicant indicated to the IAA that he fears he would be viewed as an infidel and harmed because of his extended residence in the west and as a returning asylum seeker. He has claimed in recent days that he is a now non-practising Shia Muslim and could be viewed adversely on return as an apostate or one who has abandoned his Islamic upbringing. The Tribunal accepts these claims all is possible. Saying that there appears to be no indication from the Australian Government that under the existing Taliban circumstances Afghani Hazara people will be returned forcibly to Afghanistan - particularly as he has been found to be a refugee by the IAA.
The Tribunal gave that consideration ‘significant weight against cancellation’.
The Tribunal also referred to the Authority decision in its consideration of whether there would be any mandatory legal consequences of a decision to cancel the applicant’s bridging visa. The Tribunal relevantly said at [35]:
He also tendered a document which indicates that he was found to be is a refugee within the meaning of s.5H(1) of the Migration Act 1958 by the IAA. Essentially, a decision to affirm the cancellation of his Bridging Visa E would entail permanent detention of the applicant unless he voluntary left or was removed from Australia.
The Tribunal gave the consideration ‘significant weight against cancellation’.
The Tribunal referred to the Authority decision again in its consideration of whether any international obligations would be breached as a result of cancelling the applicant’s bridging visa and said at [37]:
Within his present unlawful status, Australia does owe the applicant a non-refoulement obligation as he has already been found to be a refugee by the IAA.
The Tribunal gave this consideration ‘significant weight against cancellation’.
In considering ‘any other relevant matters’, the Tribunal had regard to the applicant’s criminal offending and the reasons behind it. The Tribunal said at [41]:
However, the Tribunal is concerned with a particular response which the applicant gave in oral evidence to a question put to him by the Tribunal in the first hearing. Towards the end of the hearing, the applicant was asked by the Tribunal what his motivation was for committing the felonious act of ‘sexual penetration without consent’. This question was based on the Tribunal observation that the applicant had gone to so much trouble and risk to reach Australia as a UMA or “boat person” (as referred to in the media). The Tribunal asked him why would he prejudice all this effort by engaging in opportunistic ‘sexual penetration without consent’? The significance of this Tribunal question is heightened latterly by recent additional information tendered by his representative. In the submitted IAA Decision, it notes that the applicant went before the IAA twice and also before the Court unsuccessfully - seeking refugee status. He won his case on the third attempt at the IAA and was approved for refugee status.
Applicant’s submissions
The applicant submitted that the Authority decision provided to the Tribunal by the applicant’s representative does not relate to the applicant at all. In the Authority decision, the Authority rejected entirely the relevant fast track applicant’s claims to fear harm on the basis that he was instructed by a Hazara warlord to assassinate an Afghan security official, noting that it was ‘concerned at serious issues about the veracity of many claims and evidence’. The Authority instead found that the relevant fast track applicant engaged Australia’s protection obligations because of the risk of harm faced by Hazara Shias. When the present applicant’s case was considered by the Authority, the Authority found that there was no real chance of harm because it was not satisfied that the Taliban were active in the applicant’s particular community and because the present applicant’s limited religious adherence denied him the requisite profile.
The applicant submitted that the Tribunal fundamentally misunderstood the case presented to it, by wrongly attributing to the applicant the Authority decision before it, whereas the Authority decision was apparently submitted to support an argument by analogy that the applicant would be unlikely to be returned to Afghanistan because he was also at risk.
In addressing the consequence of the Tribunal’s error, the applicant referred to the High Court’s observation in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) that the minimum content of the duty to consider a representation is a duty to read, identify and understand what is put forward to the Tribunal. The applicant submitted that the Tribunal in the present case fundamentally misunderstood what was put and who was saying what. The applicant submitted that although the Tribunal accepted that the applicant had the benefit of a protection finding, that flowed from a misunderstanding that the matters contained in the Authority decision provided to the Tribunal were assimilated to the matters relating to the applicant. The applicant submitted that the Authority made ‘quite excoriating’ observations about the credibility of the relevant fast track applicant and disbelieved much of what that applicant had said. The Tribunal in the present case reached a conclusion that the applicant was dishonest in his evidence that he was drunk at the time of the sexual penetration without consent and that this informed the dispositive finding that the applicant was likely to reoffend. The applicant further submitted that the Tribunal’s belief that the applicant had been approved for refugee status expressly informed its reasoning of the apparently dispositive issue, with the Tribunal referring at [41] to the heightened significance of the applicant claiming to have been drunk on the night of the sexual penetration without consent. The Tribunal found great significance in the answer given to its interrogation, including because of the Tribunal’s misapprehension of the case put forward by the applicant.
The applicant further submitted that the undemanding threshold of materiality is met in relation to the Tribunal’s error.
Counsel for the applicant further addressed the consequences of the Tribunal’s error and materiality in his oral submissions. Counsel for the applicant submitted that it can easily be inferred that the Tribunal assimilated to the applicant what was said by the other fast track applicant whose claims were considered in the Authority decision. Counsel for the applicant submitted that credibility was a significant factor in the Tribunal’s decision, as it was the Tribunal’s disbelief of the applicant’s evidence that he was drunk at the time of the offence which snowballed into a finding that he lacked remorse for what he did and the Tribunal gave maximum weight to the consideration of whether the applicant would reoffend. Counsel for the applicant submitted that the Court cannot just isolate one aspect and say that the Tribunal gave the benefit of a protection finding to the applicant because that is not all what the Tribunal did, and it would be wrong to approach the weighing exercise by isolating one factor and saying that because the applicant got the benefit of that there is no difference. The Tribunal’s mistake that the applicant had the benefit of a protection finding also affected other things and had a run-on effect that can be seen at [55] of the Tribunal’s reasons where the Tribunal gave maximum weight to the important consideration of whether the applicant would reoffend, and one of the reasons it did that is that expressed at [41] where the Tribunal said that the applicant won his case at the third attempt before the Authority and was approved for refugee status. Counsel for the applicant submitted that the error was material for the following reason:
So it wasn’t just the case that he got the benefit of a protection finding in his favour and that’s the end of the mater. It had other consequences. It complicated the calculus here in paragraph 41. It lessened the intensity of the findings, which the tribunal thought was very significant about the contradiction which it found between the applicant saying he was drunk to the tribunal and the judge giving second hand statements that he accepted he had been drinking but that he wasn’t affected by alcohol. None of that could be reconciled if you were to take out the finding that he hadn’t actually got a protection visa because it lessened the intensity of this trope of reasoning in 41.
Counsel for the applicant also submitted that the Minister’s submissions appeared to be premised on a distinction between claims and evidence, which was rejected in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317.
Minister’s submissions
The Minister accepted that the Tribunal made a mistake of fact in failing to recognise that the individual the subject of the Authority decision was a different person to the applicant.
The Minister submitted that the first, and fundamental, difficulty with the ground is that the Tribunal’s misunderstanding was beneficial to the applicant, noting that the Tribunal gave significant weight to not cancelling the visa based on this misunderstanding. No practical injustice was suffered by the applicant in circumstances where the erroneous finding of fact weighed entirely in the applicant’s favour.
The Minister submitted that the second difficulty is that the Tribunal’s misunderstanding did not result in any failure to consider representations made by the applicant. The Tribunal’s reasons demonstrate that the Tribunal took into account the Authority decision in the exact manner which the applicant’s representative asked it to, namely, in relation to the issue of protection and non-refoulement. Although the Tribunal may have made a mistake as to the fact of a protection finding, the Tribunal did not misunderstand the substance of the representation being made, which was to support the applicant’s submission as to harm on return and the prospect of indefinite detention. The Minister submitted that there was no denial of procedural fairness or any constructive failure to exercise jurisdiction, noting that a mere incorrect finding of fact (other than a jurisdictional fact) does not amount to jurisdictional error.
In relation to the applicant’s submissions based on the Authority’s adverse credibility findings in relation to the other fast track applicant, the Minister submitted that the Tribunal’s misunderstanding that the applicant had been approved for refugee status did not, in any way, impugn the Tribunal’s consideration at [40] to [55]. The Minister submitted that, read fairly, the significance to which the Tribunal referred at [41] is the fact that the applicant engaged in conduct while he was pursuing a protection visa. The Minister also highlighted relevant parts of the transcript of the Tribunal hearing that supported that construction.
The Minister submitted that the Tribunal did not make any finding that the applicant was likely to reoffend. The Minister further submitted that the applicant’s submission on materiality in his written submissions goes no higher than an assertion that the applicant was denied the possibility of a different outcome, without making any attempt to suggest how this could have occurred otherwise to satisfy his onus of demonstrating materiality.
In her oral submissions, Counsel for the Minister submitted that, to succeed on this ground, the applicant must establish that the Tribunal’s error had some effect on the Tribunal’s consideration of his credit. Counsel for the Minister submitted that there is not one iota of evidence that the Tribunal, in its consideration of the applicant’s credibility, took into account what the Authority had said about the other fast track applicant’s credit to the detriment of the applicant.
Consideration of the ground
In Plaintiff M1, the High Court said at [24] (footnotes omitted):
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
It is apparent from the Tribunal’s reasons that the Tribunal misunderstood the evidence before it in finding that the applicant had been found to be owed protection obligations. The decision of the Authority that was provided to the Tribunal did not relate to the applicant before the Tribunal and was provided to the Tribunal, according to the covering email of the applicant’s lawyer, to show the approach now taken by the government in relation to protection claims advanced by Hazara Shias who claimed to fear returning to Afghanistan under the new Taliban regime. I accept the applicant’s submission that the Tribunal’s misunderstanding of the evidence shows that it did not adhere to the required approach described in Plaintiff M1.
I acknowledge the Minister’s submission to the effect that, notwithstanding the Tribunal made a mistake as to the fact of a protection finding, the Tribunal did not misunderstand the substances of the representations the applicant made, which were to support his submissions as to harm on return to Afghanistan and the prospect of indefinite detention. However, in circumstances where the Tribunal has clearly misunderstood the evidence before it, I consider that this submission is more relevant to the question of materiality than the question of whether the Tribunal has properly understood the evidence and representations of the applicant.
The question of whether the Tribunal’s error amounted to a material jurisdictional error is complex. The error will be material if the Tribunal’s decision could realistically have been different had there been no error: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [3], [45]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at [7], [14]. That is an inquiry that is wholly backward looking, and is to by answered by reference to the decision that was made and how the decision was made: LPDT at [10]. While the applicant bears the onus of establishing materiality, meeting the threshold of materiality ‘is not demanding or onerous’: LPDT at [14].
I accept the Minister’s submission to the effect that the Tribunal understood that the applicant was raising issues of protection and non-refoulement to support his submission that he would face harm on return to Afghanistan and in relation to the prospect of indefinite detention. I further accept the Minister’s submission that the Tribunal’s misunderstanding of the evidence was used in a way that was beneficial to the applicant. As can be seen from the references to the incorrect understanding of the evidence in the Tribunal’s findings referred to above, the Tribunal, in considering a number of different factors, placed significant weight against cancellation on matters arising from its misunderstanding that the applicant had been found to be owed protection. If this was the only way in which the Tribunal had relied on its misunderstanding, I would not hesitate to find that the error of the Tribunal was not material.
However, the applicant’s submission is that the Tribunal’s misunderstanding of the evidence has also contributed to its findings in relation to the applicant’s credibility. As I understand the applicant’s submissions, there are two ways in which the applicant says that the Tribunal’s misunderstanding of the evidence has contributed to its adverse credibility findings against the applicant. The first is that the matters considered in the Authority decision, about which the Authority made adverse credibility findings against the relevant fast track applicant, may be attributed to the applicant in the present case. The second way in which the Tribunal’s misunderstanding of the evidence is said to have impacted the Tribunal’s credibility findings is the significance attached to its belief that the applicant had been found to be owed protection in assessing the impact of his evidence that he was drunk at the time of the sexual penetration without consent, which the Tribunal found to be inconsistent with the remarks of the sentencing judge. I address the submissions in turn and, in so doing, I am mindful that the assessment of credibility is not necessarily linear: see VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79]; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189 at [101].
In relation to the first of these alleged impacts on credibility, I accept the submission advanced by Counsel for the Minister that there is nothing in the Tribunal’s reasons to suggest that the Tribunal took into account what the Authority had said about the other fast track applicant’s credit to the detriment of the applicant. The applicant has not identified any way in which the Tribunal relied on the other fast track applicant’s claims in its assessment of the credibility of the applicant in the present matter and the suggestion that this may have impacted the Tribunal’s credibility assessment appears to be speculative, and not based on any consideration of the Tribunal’s reasons or how the Tribunal decision was made.

The second of the ways in which the Tribunal’s misunderstanding of the evidence is said to impact on the Tribunal’s credibility findings is based on its reasoning at [41] which is extracted at [73] above. It will be recalled that the Tribunal, based on its observation that the applicant had gone to so much trouble and risk to reach Australia as an unauthorised maritime arrival, questioned the applicant about his motive for committing the offence and why he would prejudice this effort by engaging in opportunistic sexual penetration without consent. The Tribunal then expressed that the ‘significance’ of the question was ‘heightened’ by the information that the applicant had been approved for refugee status. The Tribunal considered the applicant’s response that he was drunk on the night in question to be inconsistent with the sentencing remarks, which ruled out the applicant being drunk on the night in question. The Tribunal considered the applicant’s evidence that he was drunk to be ‘significant in its importance to the review’: Tribunal reasons at [45].
There is merit to the Minister’s submission in response that the significance referred to by the Tribunal at [41] is to the fact that the applicant engaged in the conduct while he was pursuing a protection visa, rather than the fact of him having been approved for refugee status. Nevertheless, the Tribunal in its own reasons referred to the significance of its question being ‘heightened’ as a result of the information that the Tribunal incorrectly interpreted as being information that the applicant had been approved for refugee status. Therefore, I do not accept that the significance that is referred to at [41] of the Tribunal reasons being the applicant engaging in the criminal conduct while pursuing a protection visa, rather than the fact of having been approved for refugee status, is a basis, of itself, for finding that the error is not material.
It is, however, relevant to have regard to what the Tribunal said in its reasons the significance attached to. The applicant’s submissions in relation to the materiality of the Tribunal’s misunderstanding of the evidence on this aspect of its credibility findings are premised on the understanding that the Tribunal placed heightened significance on the applicant’s evidence that he was drunk on the night of the sexual penetration without consent because of its misunderstanding that he the applicant had been approved for refugee status. This is not an accurate reading of the Tribunal reasons. The Tribunal did not say expressly in its reasons that the applicant being approved for refugee status gave heightened significance to his evidence that he was drunk on the night of the sexual penetration without consent. Rather, the Tribunal said that it gave heightened significance to the question posed by the Tribunal.
It was the applicant’s answer to the Tribunal’s question, the additional evidence that he gave at a second hearing convened by the Tribunal, and the inconsistencies that the Tribunal perceived between that evidence and the information before it in relation to the evidence relevant to the sentencing of the applicant that caused the Tribunal to make the findings it did at [55] of its reasons, namely:
The Tribunal prefers to give significantly greater weight to the judge’s sentencing remarks than, for instance, the opinion of his remediation assesses and the WA parole board findings that he is unlikely to reoffend. In saying this the Tribunal does not wish in any way to diminish the professional standing of the assessors. However, the applicant has claimed to the whole world that he is truly remorseful for his actions. Yet under the recent circumstances elaborated above (post incarceration) the Tribunal remains unconvinced of that claim and gives it little positive weight. On the contrary, the Tribunal gives the important consideration of whether the applicant will reoffend maximum weight in favour of cancellation.
I accept the Minister’s submission that the Tribunal’s misunderstanding of the applicant having been granted refugee status was, when considered in the context of its reasoning at [42]-[50] of its reasons, of no bearing on the conclusions reached by the Tribunal in respect of the applicant claiming to have been drunk at the time of his offending behaviour. Nor did it have any bearing on the Tribunal’s finding at [55].
When the Tribunal’s reasons are read fairly and as a whole, the applicant has not identified anything in the Tribunal’s reasons to indicate that the Tribunal’s misunderstanding that the applicant had been approved for refugee status was taken into account by the Tribunal in assessing the applicant’s credibility, or otherwise impacted on that assessment, in particular in relation to its assessment of the impact of the applicant’s evidence that he was drunk on the night of the sexual penetration without consent.
If one considers a counterfactual scenario where the Tribunal did not misunderstand the evidence before it, and therefore did not proceed on the misunderstanding that the applicant had been approved for refugee status, it is difficult to conceive of how the Tribunal’s concerns about the applicant’s evidence that he was drunk on the night of the offence, and the consequence of that inconsistency on its evaluation of the risk of reoffending and the applicant’s expressions of remorse, could possibly have been different.
Even after taking into account that the assessment of credibility is not linear and can be complex, the applicant has not established that there is a realistic possibility that the Tribunal decision could have been different if the Tribunal had not misunderstood the evidence in the way that it did.
I therefore find that the Tribunal’s misunderstanding of the evidence was not material. Ground 3 is therefore not established.
Even if I am wrong in this finding, I would not grant relief to the applicant. For the reasons explained at the end of this judgment, I do not accept that there would be any utility in granting relief to the applicant even if jurisdictional error were established.
GROUND 4
Ground 4 of the amended application reads:
The decision of the second respondent on 21 July 2023 purporting to affirm the first respondent’s decision purporting to cancel the applicant’s BVE was vitiated by a denial of procedural fairness, or a constructive failure to perform the duty to review, in that the ultimately dispositive issue of whether the applicant posed an unacceptable risk of reoffending was never raised.
Particulars
4.1A fundamental reason for the second respondent affirming the first respondent’s decision was, in substance, its conclusion that the applicant posed an unacceptable risk of reoffending.
4.2The second respondent found enormous significance in the applicant’s evidence in 2023 to the second respondent that he was ‘drunk’, as opposed to the sentencing judge’s second-hand statement that the applicant ‘accept[ed]’ that he had ‘drunk some alcohol [but was not] affected by alcohol’ in 2018.
4.3But the second respondent never actually put to the applicant that he was an unacceptable risk of reoffending.
Applicant’s submissions
The applicant submitted that the Tribunal’s primary reason for affirming the delegate’s decision appears to be the Tribunal’s conclusion to ‘give the important consideration of whether the applicant will reoffend maximum weight in favour of cancellation’. The applicant submitted that the Tribunal’s logic amounted to the Tribunal disbelieving the applicant’s direct evidence in October 2022 that he was drunk when he committed the offence of sexual penetration without consent in April 2019 and therefore the applicant is a maximum risk of reoffending. The Tribunal questioned the applicant about his motivation for opportunistically committing the offence, a question that was prompted by the Tribunal’s observation that the applicant had gone to great lengths to reach Australia as a ‘boat person’. The applicant submitted that the Tribunal was taken aback by the applicant’s evidence that he was drunk because the sentencing judge’s conviction remarks emphatically ruled out the applicant being drunk at all on the night in question. The sentencing judge instead noted that the applicant ‘accepted at the time of the offending that, although he drank some alcohol, he wasn’t affected by alcohol’. The Tribunal considered the applicant’s direct evidence that he was drunk to be significant in its importance to the review. The Tribunal then preferred the second-hand observations of the sentencing judge based on materials not before the Tribunal over the direct evidence of the applicant. The Tribunal reasoned from this that the applicant’s claim to have been drunk was calculated to diminish his responsibility for the offence. The Tribunal then recorded ‘secondary concerns’ of ‘the possibility that the applicant may have been insincere with his counsellors and assessors in claiming remorse and that, in his own mind, he was possibly unrepentant of the “sexual penetration without consent” that he performed on the victim’. The Tribunal concluded that the applicant had attempted to ‘excuse the actual premeditation and orchestration involved’ and the Tribunal rejected the applicant’s claims to be remorseful and gave ‘the important consideration of whether the applicant will reoffend maximum weight in favour of cancellation’.
The applicant submitted that the lack of remorse and risk of reoffending was never put to the applicant as an issue and was not an issue before the delegate such that the applicant was on notice of it. What was put to the applicant was that he had been ‘untruthful’ when he told the Tribunal that he was ‘drunk’. The applicant submitted that the Tribunal’s conclusion that the applicant may have been ‘insincere’ with his assessors in 2019, ‘unrepentant’ on the sexual penetration without consent and a maximum risk of reoffending was by no means apparent and bordered on outlandish. Procedural fairness requires identification of ‘any critical issue not apparent from the nature of the decision or the terms of the statutory power’ and ‘any adverse conclusion which would not obviously be open on the known material’. The applicant submitted that it was one thing to challenge him on whether he was ‘drunk’ some three years earlier, but another altogether to conclude dispositively that he had been insincere with the assessors, unrepentant of his crimes and not a low risk of reoffending.
In his oral submissions, Counsel for the applicant submitted that lack of remorse was an issue, as was the Tribunal’s inclination to make a finding that there should be maximum weight against cancellation because of it as the applicant was likely to reoffend. Counsel for the applicant submitted that it was an issue that needed to be put to the applicant, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL).
Minister’s submissions
The Minister submitted that the pleaded ground is that the ‘ultimately dispositive issue of whether the applicant posed an unacceptable risk of reoffending was never raised’. The Minister submitted that the premise of this ground is not established because the Tribunal did not make any finding, express or implicit, that the applicant posed an unacceptable risk of reoffending. The Tribunal found that it agreed with the sentencing judge’s reasons that he could not be satisfied the applicant posed no risk, and when considered in the context of the applicant walking back from his responsibility for the conduct, this was to be given maximum weight. This cannot be elevated to a finding that there was an ‘unacceptable risk’. Further, the Tribunal did not find that the applicant was a ‘maximum risk’ of reoffending but instead gave maximum weight to the fact that it could not be satisfied that the applicant was at no risk of reoffending. The Minister submitted that it is also important to note that the applicant himself raised his ‘risk of reoffending’ and provided the information which referred to his risk of reoffending and submitted, based on this information, that he was not a danger to the community and was a low risk of reoffending. The information upon which the Tribunal relied, in preferring the sentencing judge’s remarks that it could not be satisfied that the applicant posed no risk, were the responses which the applicant provided to questions posed by the Tribunal. The Minister submitted that the Tribunal was not required to put to the applicant information that he himself provided for the purpose of the review, and was not required to give the applicant a running commentary of what it thinks of the evidence or its appraisals or conclusions in weighing up the evidence. The Minister submitted that the applicant was sufficiently aware that the circumstances of his offending were a matter relevant to the review and was given the opportunity to provide what evidence and submissions he wished to.
In her oral submissions, Counsel for the Minister submitted that the findings of the sentencing judge, which the Tribunal preferred, were not that there was no risk – it may be a low risk, but it is still a risk. The Tribunal gave maximum weight to that risk, and that cannot be spun as a finding that there is a high risk. Questions of weight are quintessentially for the Tribunal.
Counsel for the Minister also submitted that it was the applicant who made the claim that he was at a low risk of reoffending and the Tribunal was entitled to reject that evidence. To the extent that the applicant claims the Tribunal did not put to him its concern that he lied about being drunk, this was squarely put to him at the Tribunal hearing. Counsel for the Minister also submitted that, in any event, the finding made by the Tribunal was not one that was required to be put to the applicant for comment.
Consideration of the ground
As part of its procedural fairness obligations, the Tribunal was required to identify to the applicant any issue that it considered to be relevant and which was not apparent from the delegate’s decision or the nature of the statutory power and to advise the applicant of any adverse conclusion which would not obviously be open from the available material: SZBEL at [47]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [9]. The Tribunal was not, however, required to expose its thought processes or provisional views for comment, or to give an applicant a running commentary of its thoughts on the evidence that is given: SZBEL at [48]; SZGUR at [9].
The applicant’s contention is that it was never put to him that he lacked remorse or that whether there was an unacceptable risk of reoffending was in issue in the proceeding.
There is some dispute between the parties as to whether the Tribunal in fact found that the applicant presented an unacceptable risk of reoffending. Having carefully considered the Tribunal’s reasons, I consider the Minister’s submissions more accurately reflect the Tribunal’s findings in this matter. The Tribunal did not expressly find that the applicant posed an ‘unacceptable risk of reoffending’ but rather accepted the sentencing judge’s assessment that he could not be satisfied there was no risk of the applicant reoffending in preference to the assessment of others, and gave the consideration of whether the applicant would reoffend ‘maximum weight in favour of cancellation’.
Having said that, my consideration of this ground does not turn on the precise identification of the Tribunal finding.
It is clear that the Tribunal considered in reaching its decision the risk of whether the applicant may reoffend and the remorse shown by the applicant. The applicant was, or ought to have been, aware that these were issues in the proceeding, given that he raised them himself. He claimed to be remorseful both before the delegate and before the Tribunal. His ‘final remarks’ at the end of the Tribunal hearing on 19 July 2023 were to say that he was ‘remorseful’ and ‘ashamed of what [he] did’. The applicant raised in submissions provided by his representative before the first hearing that the risk of reoffending was low and provided documentary evidence to support this submission. His representative also made oral submissions about the risk of reoffending at the hearing on 19 July 2023. The applicant therefore had the opportunity to make submissions and present evidence in relation to these issues that he raised.
The Tribunal was not required to uncritically accept the applicant’s evidence and submissions and was not required to disclose its thought processes to the applicant and invite him to comment. The Tribunal’s conclusion in relation to the risk of reoffending, namely, to prefer the findings of the sentencing judge, was the result of considering the various items of evidence before it and preferring one item of evidence over others, giving detailed reasons for this. The weight to be given to the evidence, and to its views of the applicant’s risk of reoffending in the exercise of its discretion were matters for the Tribunal.
The applicant has not established that there was any issue arising in relation to the review that he was not aware of or that he did not have the opportunity to address. The error asserted by this ground is not established.
Before leaving this ground, I make one final observation in relation to a point which does not appear to have been raised by either party. The Tribunal convened hearings in this matter on 10 July 2023 and 19 July 2023. A transcript of the hearing on 19 July 2023 is in evidence before the Court, but there is no transcript of the hearing on 10 July 2023 in evidence. I therefore have no way of knowing what, if any, issues the Tribunal identified at the hearing on 10 July 2023. It is difficult for an applicant to discharge the onus of establishing jurisdictional error on the basis that the Tribunal did not put information to him without complete evidence of what was said by the Tribunal to the applicant.
Ground 4 is not established.
GROUND 5
Ground 5 of the amended application reads:
The decision of the second respondent on 21 July 2023 purporting to affirm the first respondent’s decision purporting to cancel the applicant’s BVE was vitiated by unreasonableness in the reasoning process and/or in the ultimate decision.
5.1The second respondent’s observation described particular 4.2 informed the second respondent’s conclusion that the applicant posed an unacceptable risk of reoffending.
5.2But the conclusion was the product of the multiplication of a series of hyperbolic or exaggerated inferences which was out of all proportion to the true significance of the premise, including the propositions that:
5.2.1the premise of a ‘total inconsistency’ (‘totally contradicts’; ‘significant inconsistency’), which exposed a ‘new post facto claim of diminished responsibility ... bizarrely aimed at mitigating the primary consideration necessitated in this review’, and;
5.2.2this meant that there was ‘a possibility that the applicant may have been insincere with his counsellors and assessors in claiming remorse and that [therefore] he is (possibly) unrepentant’ [50], and;
5.2.3that applicant not retracting his evidence in 2023 that he was ‘drunk’ exposed a ‘doubl[ing] down’ [51] of that ‘extraordinary evidence’ [53], and;
5.2.4therefore, the sentencing judge’s perfectly neutral statement that he ‘cannot be satisfied there is no risk of reoffending’ was logically analogous to, and entails, the second respondent ‘preferring’ a finding that the applicant was in fact an unacceptable risk of reoffending attributed to the sentencing judge.
5.3In any event, in falsifying the applicant’s ‘forceful’ and repeated (‘doubled down’) direct evidence by reference to the second-hand statements of the sentencing judge drawn from materials not before the second respondent, but readily available, the reasoning or conclusion was unreasonable.
Applicant’s submissions

The applicant submitted that the Tribunal concluded he was, in effect, a high risk of offending from the premise that he had falsely denied at the hearing that he was not drunk when he committed the sexual penetration without consent. The applicant submitted that the conclusion is not entailed by the premise, or is at least out of all proportion to a reasonable conclusion from that premise. In this regard the applicant submitted:
(a)there is no necessary inconsistency at all between his evidence in 2023 that he was drunk when he committed the sexual penetration without consent in 2019 and the assessor’s second hand attribution that the applicant had previously said he had drunk some alcohol but was not affected by alcohol. The applicant submitted that even if this was correctly attributed, it was a subjective self-assessment by the applicant given some significant period of time later and was too slender a foundation for the premise and the conclusion;
(b)the applicant gave perfectly clear evidence to the Tribunal that he was drunk and the Tribunal falsified that statement by reference to the observation of the sentencing judge, who did not have any direct knowledge. The sentencing judge was merely repeating observations recorded by the assessors and the Tribunal could simply have asked for those reports. To proceed to its ultimate conclusion by reasoning in the way it did without taking that obvious step was itself unreasonable; and
(c)even if the applicant gave inconsistent evidence, that did not supply a meaningful foundation for the finding that the applicant was not remorseful. There was simply no connection between these two propositions or at least no intelligible justification for that finding.
In his oral submissions, Counsel for the applicant submitted that to go from the premise that the applicant had lied about whether or not he was drunk some years earlier, to he lacked remorse and that he was insincere and that he was a maximum risk of reoffending is absurd.
In response to the Minister’s submissions (discussed below) in relation to the actual findings of the Tribunal, Counsel for the applicant submitted that the Minister’s submission to the effect that the Tribunal’s finding was a factual finding that the applicant was not a zero risk of reoffending, would not make a lot of sense and cannot be reconciled with what the Tribunal said at [55], namely that the ‘Tribunal gives the important consideration of whether the applicant will reoffend maximum weight in favour of cancellation’. Counsel for the applicant submitted that in that context, it only really make sense if one recognises that the Tribunal reasoned that it did not believe the applicant when he said he was drunk, thought he lied to his assessors, thought he lied to the Tribunal, thought there was a high risk that he would reoffend and therefore gave that factor maximum weight. Counsel for the applicant submitted that to give maximum weight to the risk of reoffending was to form a view that the applicant was a high risk of reoffending.
Minister’s submissions
The Minister again submitted that the premise of the ground is that the Tribunal made a finding that the applicant was, in effect, a high risk of offending, but in fact the Tribunal did not make any finding that the applicant posed an unacceptable risk or was a high or maximum risk of reoffending. In circumstances where the finding the applicant seeks to impugn as unreasonable was not in fact made, the ground must fail.
The Minister submitted that the applicant’s complaint that the Tribunal’s conclusion to give maximum weight to his risk of reoffending was based on hyperbolic and exaggerated inferences and rises no higher than disagreement with the merits of the Tribunal decision. The Minister submitted that the Tribunal’s use of emphatic language such as ‘total inconsistency’, ‘totally contradicts’, ‘significant inconsistency’ and ‘extraordinary evidence’ is neither here nor there and the point was that the applicant had given inconsistent and contradictory evidence, namely that he accepted before the sentencing judge that he was not influenced by alcohol and before the Tribunal he said he was drunk. The Minister further submitted that the Tribunal’s view that the applicant had provided contradictory evidence in an effort to mitigate the weight to be given to the primary considerations is not a view that no reasonable decision-maker could have come to.
The Minister submitted that it was a matter for the applicant to provide evidence in support of his application for review. In this regard, it was the applicant who had provided the Tribunal with the sentencing remarks and the applicant cannot now claim that it was unreasonable to rely on that document simply because he subsequently gave inconsistent evidence to what was recorded in that document. The Minister submitted that to the extent the applicant is claiming it was unreasonable for the Tribunal not to obtain the source document, no request was ever made to obtain that information, it was not the case that the information was readily available taking into account the applicant’s lawyers comments on the attempts he had made to obtain it, and there was nothing to suggest that the second hand statements of the sentencing judge were inaccurate. The Minister further submitted that where the basis of the ground of cancellation was the applicant’s conviction, the Tribunal cannot look behind the conviction and sentence or the facts upon which it was based, which relevantly included that the applicant was not affected by alcohol at the time of the offence.
The Minister submitted that the applicant’s contention that his inconsistent evidence did not supply a meaningful foundation for the finding that he lacked remorse amounts to no more than asking the Court to engage in impermissible merits review.
In her oral submissions, Counsel for the Minister submitted that this ground is seeking impermissible merits review. She further emphasised, in relation to the applicant’s submission that the Tribunal should have obtained the source document on which the sentencing judge’s comments were based, that there was no suggestion from the applicant as to what the relevant source document was and how it could have been obtained, in the light of the evidence before the Tribunal that the applicant’s representative had been unable to obtain further documents having contacted the police, the court and his lawyers. Counsel for the Minister also submitted that, in light of the authority in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202, it would not have been open to go behind the sentencing judge’s finding in any event.
Consideration of the ground
The dispute between the parties as to the proper interpretation of the Tribunal’s reasons is relevant to the consideration of this ground, and in particular, whether the Tribunal’s reasons are properly interpreted as a finding that the applicant was assessed as being a ‘maximum risk of reoffending’. Again, I prefer the Minister’s characterisation of the Tribunal’s reasons. The Tribunal did not find that the applicant was of ‘maximum risk of reoffending’ but rather accepted the finding of the sentencing judge that he could not be satisfied that there was no risk of the applicant reoffending. While the Tribunal gave ‘maximum weight’ to that consideration in favour of cancelling the visa, that does not equate to an assessment that there was ‘maximum risk’. It was open to the Tribunal to consider that any risk of reoffending (assuming that finding is not impugned) was a matter that weighed in favour of cancelling the applicant’s visa and to give that factor weight as it considered appropriate.
I then turn to consider whether the finding in fact made by the Tribunal as to the risk of the applicant reoffending was open to it on the evidence before it.
First, I do not accept the applicant’s submission that there is not necessarily any inconsistency between the applicant’s evidence to the Tribunal that he was drunk at the time of the offence, and the sentencing judge’s comment that the applicant had drunk some alcohol but was not affected by alcohol. The applicant’s statement that he was drunk, particularly in circumstances where that evidence was given in response to a question as to his motives for the offending, is inconsistent with evidence before the sentencing judge that the applicant accepted he had drunk some alcohol but was not affected by alcohol. The applicant’s submission that it was a self-assessment given some years after the event does not assist his case: the self-assessment is still inconsistent at the two different points at which evidence was given.
Second, I have some reservations about the applicant’s submissions that the sentencing judge was merely repeating observations made by others in reaching his assessment. The extract of the sentencing judge’s remarks in the Tribunal’s decision shows that the sentencing judge referred to psychologist and pre-sentencing reports in his reasons, but did not specifically attribute the relevant comments to a psychologist or the pre-sentencing report. In this regard, the Tribunal extracted the sentencing judge’s observations that:
You are apparently in good physical and mental health. You accept, at the time of your offending, although you’d drunk some alcohol, you weren’t affected by alcohol.
The sentencing judge then made a further reference to a report by a psychologist that he had referred to earlier and what that psychologist said about remorse. It is therefore not clear from this statement that the source of the evidence that the applicant accepted he was not affected by alcohol was a psychologist or pre-sentence report.
The transcript of sentencing that was in evidence before the Court shows that the prosecutor tendered ‘the State brief, a copy of the videotape record of interview and other exhibits’. In another part of the transcript, the sentencing judge records:
You were not intoxicated. You were fully aware of what you were doing.
In the absence of any identification of the source of the evidence, I cannot be satisfied that the sentencing judge was merely repeating the observations of other assessors in relation to the applicant’s indication that he was not affected by alcohol.
This is not determinative of the ground before the Court. The applicant’s point, as I understand it, is that the Tribunal accepted the finding of the sentencing judge without having access to the materials on which that finding was based. That remains the case even if it is not possible to ascertain from the material before the Tribunal the precise source of the information relied upon by the sentencing judge.
I do not, however, accept that it was unreasonable for the Tribunal to have regard to and give weight to the sentencing judge’s comments without taking steps to obtain the source documents. In advancing this submission, the applicant relies on Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51, and summary of the relevant authorities provided by Nettle J at [49], where his Honour said (footnotes omitted):
It does not follow, however, that there is nothing which can be done for the plaintiff. In Prasad v Minister for Immigration and Ethnic Affairs [(1985) 6 FCR 155], Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision-maker that the court may consider that the sounder course for the decision-maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc) [(1990) 2 WAR 422], Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J’s reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh [(1995) 183 CLR 273], Mason CJ and Deane J expressly approved of Wilcox J’s reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le [(2007) 164 FCR 151], Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI [(2009) 83 ALJR 1123], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
No such error is evidenced in this case, largely for the reasons advanced in the Minister’s submissions. The applicant and his representative took steps to obtain documents from the criminal proceeding and provide them to the Tribunal. The applicant provided some relevant documents but his representative indicated in closing submissions that they were unable to obtain others in the time available. I accept the Minister’s submission that in this case, the information was not readily available. There was no request to the Tribunal to obtain documents that the applicant was unable to obtain or any indication that the Tribunal would be able to obtain them upon request. I also accept that there is no indication that the statements of the sentencing judge are inaccurate. This is not a case where it was unreasonable for the Tribunal not to take steps to obtain additional documents or information or make any inquiry.
Third, I do not accept the applicant’s submission that his inconsistent evidence about his level of intoxication did not supply a meaningful foundation for the Tribunal’s finding. This issue does not turn on the emphatic language used in parts of the Tribunal’s reasoning but rather on the reasoning process.
It was open to the Tribunal to reason that, by giving evidence that he was drunk at the time of his offending, the applicant intended to suggest that he was not fully to blame for his behaviour at the time of the offence, or to attempt to excuse the actual premeditation and orchestration involved in the sexual penetration without consent as found by the sentencing judge. It was also open to the Tribunal to compare the evidence that the applicant gave to the Tribunal and the evidence that was before the sentencing judge and prefer the evidence that was before the sentencing judge. The Tribunal referred to concerns raised by the sentencing judge about the sincerity of the applicant’s remorse and his promise not to reoffend and juxtaposed the applicant’s oral evidence that he was drunk with the findings and concerns of the sentencing judge. It was open to a reasonable decision-maker to find, as the Tribunal did, that the applicant’s new evidence that he was drunk at the time of his offending, which the Tribunal found had been given to attempt to suggest that he was not fully responsible for his behaviour, undermined the sincerity of his claimed remorse. It was also open to the Tribunal, based on the concerns expressed and the reasons it gave, to prefer the evidence of the sentencing judge in relation to the risk of the applicant reoffending to that of other assessors, including the parole board, given the concerns of the Tribunal in relation to the applicant’s remorse.
There is no unreasonableness, illogicality or irrationality in the reasoning or fact-finding of the Tribunal.
Ground 5 is not established.
GROUND 6
Ground 6 of the amended application reads:
The decision of the second respondent on 21 July 2023 purporting to affirm the first respondent’s decision purporting to cancel the applicant’s BVE was vitiated by a constructive failure to exercise jurisdiction in that the second respondent asked itself the wrong question or took into account an irrelevant consideration.
Particulars
6.1At [50] the second respondent’s reasoning culminates in its statement that ‘[w]hat is required of the Tribunal is also an assessment of the seriousness of the potential consequences against the importance of the objective sought to be achieved to determine whether the limitation on human rights is reasonable and proportionate.’
6.2Whatever this means, it is not the test, or a test, required on a review of a decision of the first respondent to cancel a visa under s 116 of the Migration Act, and is not required in substance or in form under Direction No 63 – Bridging E visas – Cancellation under s 116(1)(g).
Applicant’s submissions
The applicant referred to the Tribunal’s statement at [58] of its reasons that:
What is required of the Tribunal is also an assessment of the seriousness of the potential consequences against the importance of the objective sought to be achieved to determine whether the limitation on human rights is reasonable and proportionate.
The applicant submitted that, whatever this means, it is not the test, or a test, required on a review of the decision of the delegate to cancel a visa under s 116 of the Migration Act, and is not required in substance or in form under Ministerial Direction No 63.
In his oral submissions, Counsel for the applicant submitted that the Tribunal asked itself the wrong question, which is set out in its reasons, and that will invariably be material. In response to the Minister’s submission that the Tribunal’s discretion was broad and largely unfettered, Counsel for the applicant submitted that it is not an unfettered discretion because the Tribunal has to apply the Ministerial Direction.
Minister’s submissions
The Minister submitted that the Tribunal clearly asked itself the correct question and applied the correct test, which was identified at [12] of its reasons. It first considered whether a ground for cancellation existed and then considered whether the power to cancel the visas should be exercised. It set out what it was ‘required’ to consider, as set out in Ministerial Direction No 63, and went on to consider these matters.
The Minister submitted that, where a statute confers a broad discretionary power, the factors that may be taken into account in the exercise of that discretion are unconfined, except insofar as the subject matter, scope and purpose of the statute imply some limitation. There was no such limitation in the present matter and Ministerial Direction No 63 refers to the decision-maker considering ‘any other matter they consider relevant’.
The Minister submitted that the fact the Tribunal had regard to matters that it was not required by statute to consider does not mean that the Tribunal applied an incorrect test, or had regard to an irrelevant consideration. Further, the Minister submitted that the statement the applicant seeks to impugn in the Tribunal’s reasons was one which the applicant himself advanced in submissions before the Tribunal as being relevant to the exercise of the Tribunal’s discretion.
In her oral submissions, Counsel for the Minister submitted that the complaint relates to a paragraph of the Tribunal’s reasons that reflects a submission made by the applicant. The Tribunal’s power is broad and discretionary and is not fettered by the Direction, in the sense that the Tribunal was entitled to have regard to other relevant matters, including those that are put by the applicant that are not entirely irrelevant. The Tribunal was required to deal with the submission put to it, as can be seen from Plaintiff M1.
Consideration of the ground

I do not accept that the Tribunal asked itself the wrong question or took into account an irrelevant consideration.
The Tribunal identified at [13] of its reasons that a visa may be cancelled under s 116(1)(g) of the Migration Act if a prescribed ground exists. The Tribunal was satisfied that a ground for cancellation existed and then proceeded to consider whether, as a matter of discretion, the applicant’s bridging visa should be cancelled. The Tribunal recognised at [16] that it was required to comply with Ministerial Direction No 63 in reaching its conclusion and identified that this Direction contained primary and secondary considerations, which the Tribunal set out in its reasons and then proceeded to consider.
The Tribunal was not limited to considering only the factors referred to in Ministerial Direction No 63 and, in this regard, it is relevant to note that Ministerial Direction No 63 expressly allows the Tribunal to consider any other matter it considers relevant.
I accept that the matter referred to at [58] of the Tribunal reasons was not something that was expressly referred to in Ministerial Direction No 63, but it was not outside the subject matter, scope or purpose of the statutory criteria that the Tribunal was considering and it was not something that the Tribunal was precluded from taking into account.
Further, I accept the Minister’s submission that the Tribunal’s finding at [58] was in direct response to a submission advanced on behalf of the applicant that it was appropriate for the Tribunal to consider. In his final submissions to the Tribunal, the applicant sought to persuade the Tribunal that the secondary considerations outweighed the primary considerations and weighed against cancellation of his visa. As part of his submission, the applicant referred to the hardship that he would face if the visa were cancelled and, in so doing, relied on the following extract of a submission by the Australian Human Rights Commission to the Joint Standing Committee on Migration, Review processes associated with visa cancellations made on criminal grounds, dated 27 April 2018 (emphasis added):
[W]here a visa decision has more serious consequences – such as possible refoulement, prolonged immigration detention and separation from family – the limitations on human rights caused by the decision may not be reasonable or proportionate, even if they have a legitimate objective. What is required is an assessment of the seriousness of the potential consequences against the importance of the objective sought to be achieved to determine whether the limitation on human rights is reasonable and proportionate.
The Tribunal’s reasoning at [58] largely mirrors the extract referred to in the applicant’s submission. The Tribunal considered the applicant’s submission but found that the secondary considerations for not cancelling the visa did not outweigh the primary considerations.
There is no error in the Tribunal having regard to this matter which was referred to in the applicant’s submissions and it does not amount to the Tribunal taking into account an irrelevant consideration or asking itself the wrong question.
Ground 6 is not established.
UTILITY AND RELIEF
As mentioned above, both parties made submissions to the Court in writing and orally in relation to the relief they believe the Court should make depending on the various findings of the Court. This had the potential to be a complex issue in this matter and I thank both parties for the efforts that they went to in addressing the Court on this matter in both oral and written submissions.
In circumstances where I have found that the Court has no jurisdiction to review the delegate’s decision in the way sought by ground 1, and where grounds 3 to 6 alleging jurisdictional error in the Tribunal decision are not established, the appropriate relief is for the application to be dismissed. Therefore, it is unnecessary to expressly consider many of the submissions advanced by the parties in relation to relief.
I would, however, note that even if I am wrong in finding that there is no jurisdictional error in the Tribunal decision, I would not grant relief to the applicant in this matter.
The notice of the grant of the bridging visa given to the applicant indicated that the bridging visa would cease 28 days after his judicial review proceedings were completed. The judicial review proceedings relevant to the grant of the bridging visa were his application to this Court for judicial review of the Authority decision affirming the delegate’s decision to refuse to grant him a protection visa. The information in the notice of the grant of the bridging visa is consistent with the requirements of cl 050.512 in Sch 2 to the Regulations, which relevantly provides:
In the case of a visa granted to a non‑citizen (other than a non‑citizen to whom subclause 050.222(3) applies) to whom paragraph 050.212(3A)(b), paragraph 050.212(4)(a), (aa) or (d) or subclause 050.212(9) applies—bridging visa:
(a) coming into effect on grant; and
(b) permitting the holder to remain in Australia until:
(i)if another bridging visa is granted to the holder in respect of his or her judicial review application—the grant of that bridging visa; or
(ii)subject to paragraph (c), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or…
Given that the applicant’s judicial review proceeding to which the bridging visa related was dismissed on 19 March 2020, the applicant’s bridging visa would have ceased on 16 April 2020.
The Minister submitted that relief in the nature of certiorari would have no legal effect because the applicant would remain an unlawful non-citizen and his visa would not be reinstated. In relation to mandamus, in oral submissions, Counsel for the Minister submitted that if the matter was remitted to the Tribunal, the Tribunal could affirm the decision, which would leave everybody in the same position as they are in now, or set aside the delegate’s decision and substitute it with a decision not to cancel, but the applicant would remain without a visa because the visa has expired. Counsel for the Minister submitted that the Court should not, as a matter of discretion, require the Tribunal to reconsider a decision that has no utility. Counsel for the applicant acknowledged that there was some force in the Minister’s submission in relation to mandamus, without abandoning his request for the Court to issue a writ of mandamus.
In circumstances where the cancellation decision related to a bridging visa held by the applicant which, even if it had not been cancelled, would now have ceased and could not be reinstated irrespective of any decision that the Tribunal may make if the matter were remitted to it, even if I had found jurisdictional error in the Tribunal decision, I would not exercise my discretion to issue a writ of mandamus in relation to the Tribunal decision in this matter. There would also be no utility in issuing a writ of certiorari to quash the Tribunal decision because, if I did that, the delegate’s decision would again become the operative decision and this Court has no jurisdiction to review that decision.
I note that in the Minister’s supplementary submissions, the Minister made a submission in relation to the exercise of discretions which may allow the applicant to apply for a further visa, and the applicant objected to that submission on the basis that it was not the subject of evidence. I do not have regard to that particular submission of the Minister in reaching the views expressed above.
I do not address the various submissions that the parties made about declaratory relief, which I understand to be directed to relief that might be granted if I found error in the delegate’s decision, which I have found that I cannot review.
CONCLUSION
For the reasons above, the application for judicial review is dismissed.

I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 8 August 2024

File number:	PEG 167 of 2023
Judgment of:	JUDGE LADHAMS
Date of judgment:	8 August 2024
Catchwords:	MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s bridging visa – where the applicant seeks to also challenge the delegate’s decision under the ancillary or original jurisdiction of the Court – whether the Court has jurisdiction to review the delegate’s decision – the Court does not have jurisdiction to review the delegate’s decision – whether the Tribunal constructively failed to exercise its jurisdiction, or denied the applicant procedural fairness by misconstruing the evidence – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal decision and reasoning was unreasonable – whether the Tribunal asked itself the wrong question or took into account an irrelevant consideration – no jurisdictional error in the Tribunal decision – application dismissed.
Legislation:	Constitution s 75 Migration Act 1958 (Cth) ss 48B, 116, 119, 123, 124, 195A, 417, 474, 476, 476A, 477, 501, 501CA Migration Regulations 1994 (Cth) reg 2.43, Sch 2, cll 050.212, 050.512
Cases cited:	BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; [1979] FCA 21 EIX18 v Minister for Immigration [2020] FCCA 619 HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Pearson v Minister for Home Affairs (2022) 295 FCR 177; [2022] FCAFC 203 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 96 ALJR 497; [2022] HCA 17 Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 408 ALR 503; [2023] FCAFC 10 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 Verma v Minister for Immigration and Border Protection (2018) 262 FCR 514; [2018] FCAFC 87 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256; [2022] FCAFC 6 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248
Division:	Division 2 General Federal Law
Number of paragraphs:	167
Date of last submission:	12 March 2024
Date of hearing:	31 January 2024
Place:	Perth
Counsel for the Applicant:	Mr M Crowley
Solicitor for the Applicant:	AUM Legal
Counsel for the First Respondent:	Ms N Wootton
Second Respondent:	Submitting appearance by the second respondent, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

PEG 167 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EIX18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	8 AUGUST 2024