YNPX v Minister for Immigration and Multicultural Affairs - [2025] FCA 49

FEDERAL COURT OF AUSTRALIA
YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49

Review of: YNPX v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 627

File number(s): VID 422 of 2024

Judgment of: O'BRYAN J

Date of judgment: 7 February 2025

Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming the decision of the Minister’s delegate refusing to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal did not err in its consideration of the strength, nature and duration of the applicant’s ties to Australia – where Tribunal failed to address and/or meaningfully engage with applicant’s claims regarding risk of harm upon return to South Sudan – where Tribunal failed to consider applicant’s argument regarding risk of relapse of alcohol addiction upon return to South Sudan – where Tribunal had regard to an irrelevant consideration in determining the impact of detention on the applicant – application allowed

Legislation:
Constitution s 75(v)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sched 16 ss 10, 25

Migration Act 1958 (Cth) ss 476A(1)(b), 476A(2), 499(1), 500(1)(ba), 501(3A), 501(6)(a), 501(7)(c), 501(7)(d), 501CA(4)

Cases cited:
Abebe v The Commonwealth (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Attorney-General (NSW) v Quin (1990) 170 CLR 1

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

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

Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461

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

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219

Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582

WCGD v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 180 ALD 355

Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 131

Date of hearing: 2 October 2024

Counsel for the Applicant: M Kenneally, J Murphy and C Lees (appearing pro bono)

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: K McInnes

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

VID 422 of 2024

BETWEEN:
YNPX

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

O'BRYAN J

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The name of the first respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.
2.A writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent dated 5 April 2024.
3.A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter in accordance with law.
4.The first respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT
O’BRYAN J:
Introduction

This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 April 2024. By that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) not to revoke the cancellation of the applicant’s visa.
Pursuant to s 10 of Sched 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Administrative Review Tribunal (ART) is substituted for the Tribunal as a party to this proceeding with effect from 14 October 2024. Pursuant to s 25 of Sched 16, any orders of the Court in this proceeding are taken to relate to the ART.
The applicant was born in 1991 in what is now known as South Sudan. He is a citizen of South Sudan and provided evidence to the Tribunal that he is of Madi ethnicity. The applicant arrived in Australia in 2006 as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa as a dependant on his grandmother’s visa.
Between 2010 and 2023, the applicant was convicted of a series of offences including (among other things) robbery, aggravated burglary, common assault, destruction and damage to property, contravening a family violence intervention order and making a threat to kill intending fear.
On 3 April 2023, the applicant’s visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of s 501(6)(a) (substantial criminal record), on the basis of s 501(7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was invited to make representations as to why the mandatory cancellation of the visa should be revoked.
The applicant made representations to the Minister but, on 11 January 2024, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the cancellation.
The applicant applied to the Tribunal seeking, under s 500(1)(ba) of the Act, a review of the decision of the Minister’s delegate not to revoke the cancellation.
The Tribunal affirmed the delegate’s decision on 5 April 2024. The Tribunal concluded (at [38]-[39]), for the purposes of s 501CA(4)(b)(i), that the applicant does not pass the character test for the reason that the applicant has a substantial criminal record as defined by s 501(7) (the applicant having been sentenced to 2 or more terms of imprisonment, where the total of those terms was 12 months or more). There is no challenge to that conclusion. The Tribunal also concluded (at [146]), for the purposes of s 501CA(4)(b)(ii), that the Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The Tribunal summarised its reasons for that conclusion as follows (at [141]-[145]):
141. The Tribunal has considered the specific circumstances in relation to the applicant. The Tribunal is required to weigh up all the relevant factors to determine whether it is satisfied that there is “another reason” to revoke the cancellation decision.
142. The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision. Having considered the strength, nature and duration of the applicant’s ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal is not satisfied that the cancellation of the applicant’s visa should be revoked.
143. The applicant’s offending was serious, it occurred over an extended period and in circumstances where he showed a complete disregard for the safety of the community and the operation of the law. In addition, the applicant has displayed violent and aggressive behaviour arising from incidents of family violence.
144. In addition, the applicant has failed to adequately address his addiction to alcohol. While the applicant may have become alcohol free while in prison and immigration detention, his behaviour, once he is free in the community, has been to revert to using alcohol. He has continually rejected the support and assistance of his family in favour of alcohol, a result of which, he has repeatedly engaged in dangerous, antisocial, and violent behaviour that has put his victims and the general community at the risk of harm. While the applicant has expressed remorse for his actions the IHMS reports suggest that he continues to hold limited insight into his unlawful behaviour.
145. In such circumstances the Tribunal is of the view that the applicant is an unacceptable risk to the Australian community. As such, it is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.
On 3 May 2024, the applicant filed an originating application (dated, curiously, 8 May 2024) in this Court for review of the Tribunal’s decision. At the time the application was filed, the applicant was not legally represented. Subsequently, pro bono counsel agreed to represent the applicant and, in accordance with the Court's orders, an amended originating application and written submissions were filed on 10 September 2024. On 18 September 2024, a further amended originating application was filed along with substitute written submissions. With the exception of grounds 4 and 6 which were not pressed at the hearing, the further amended originating application stated the following grounds of review (omitting the particulars).
1.The Tribunal’s conclusion that the being [sic] strength, nature and duration of the applicant’s ties to Australia weighed neutrally was:
A.       legally unreasonable, irrational or illogical;
B.        based on a finding for which there was no evidence; and/or
C.        the productive [sic] of a misconstruction of para 8.3 of Direction 99.
2.        The Tribunal:
A.failed to read, identify, understand and evaluate the applicant’s representations –and/or failed to consider the applicant’s clearly articulated arguments – that the cancellation decision should be revoked because:
i.he faced a risk of physical and/or psychological harm in South Sudan; and/or
ii.the risk of physical and/or psychological harm to the applicant constituted an impediment to removal pursuant to para 9.2 of Direction no 99.
B.        misconstrued or misapplied paragraph 9.2 of Direction no 99.
3.The Tribunal failed to read, identify, understand and evaluate the applicant’s representation – and/or failed to consider the applicant’s clearly articulated argument – that the cancellation decision should be revoked because he could suffer a relapse of his alcohol addiction on return to South Sudan, which could lead to him suffering physical or mental harm and/or be an impediment to removal pursuant to para 9.2 of Direction no 99.
4.[Not pressed]
5.The Tribunal asked itself the wrong question, misconstrued/misapplied Direction no 99, had regard to an irrelevant consideration and/or engaged in reasoning that was irrational, illogical, or unreasonable in moderating the weight to be given to the legal consequences of the decision because the applicant was a risk of re-offending and causing harm to the Australian community.
6.[Not pressed]
Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his amended originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law.
For the reasons that follow, I find that the Tribunal fell into jurisdictional error in affirming the delegate’s refusal to revoke the mandatory cancellation of the applicant's visa under s 501CA(4) of the Act.
Background
The following is a summary of the factual background that is relevant to the grounds of review raised by the applicant.
The applicant was born on 30 January 1991 in Maridi, South Sudan. He has Madi ethnicity and both his parents were born in Nimule, South Sudan. The Madi community is indigenous to Pageri County, South Sudan. The applicant’s parents were killed or went missing during civil conflict, following which he was cared for by his grandmother.
The applicant arrived in Australia in September 2006, aged 15, as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa as a dependant on his grandmother’s visa. He was accompanied by his uncle, brother, sister and grandmother and lived with his uncle and grandmother on arrival. The applicant left home in or about 2008 and lived for a time in transitional accommodation. Following difficulties he experienced upon leaving home, the applicant began abusing alcohol.
The applicant completed his High School Certificate in 2008. He was employed as an independent sales agent for a homecare supplier in Sydney from 2010 to 2012 and as a telemarketer in 2012. In or about 2014 the applicant moved to Melbourne where he worked installing smart power-boards for a home energy product supplier.
The applicant’s criminal record is summarised as follows:
(a)March 2010: common assault, destruction or damage to property (convicted without penalty);
(b)September 2010: robbery and common assault (12 months imprisonment for the robbery with a 3-month non-parole period, served concurrently with 1 month for the assault); assault of a police officer (1 month imprisonment); resisting or hindering a police officer in the course of duty (1 month imprisonment); failure to pay a train fare ($150 fine); failure to leave train, railway premises when directed ($200 fine); wilfully using offensive language on a train or public area (conviction with no penalty);
(c)May 2013: wilfully obstructing an officer in the course of duty ($400 fine); 2 counts of failure to appear in accordance with bail (no penalty); resisting an officer in execution of duty (18 months probation); assaulting an officer in execution of duty (18 months probation); assault occasioning actual bodily harm (10 months imprisonment with 3-month non-parole period); common assault (1 month imprisonment); affray (no penalty);
(d)May 2020: 5 counts of contravening a family violence intervention order (15-month community corrections order); making a threat to kill intending fear and unlawful assault intentionally causing injury (127 days imprisonment);
(e)May 2021: contravening a community corrections order ($500 fine); breach of a community corrections order (127 days imprisonment); 5 counts of contravening a family violence intervention order, contravening a condition of bail, and unlawful assault (3 months imprisonment); and
(f)May 2023: aggravated burglary (4 months imprisonment); 2 counts of contravening a family violence intervention order (2 months imprisonment); 3 counts of contravening a family violence intervention order (4 months imprisonment); committing an indictable offence whilst on bail and failure to answer bail (14 days imprisonment); making a threat to kill intending fear (1 month imprisonment); contravening a community corrections order (no penalty).
The applicant’s evidence was that his criminal record was linked to his alcohol addiction. There was evidence before the Tribunal, which it accepted, that the applicant met the diagnostic criteria for post-traumatic stress disorder (PTSD). The applicant also self-reported symptoms of anxiety and depression.
Legislative provisions
Section 501(3A) of the Act provides that the Minister (or a delegate of the Minister) must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);
. . .; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subs (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more, and s 501(7)(d) provides that a person has a “substantial criminal record” if the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Section 501CA of the Act relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. By s 499(2A), a person or body must comply with a direction made under s 499(1).
On 23 January 2023, the then-Minister made a direction titled “Ministerial Direction 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (having a commencement date of 3 March 2023) (Direction 99). In exercising the power in s 501CA(4) to decide whether to revoke the cancellation of the applicant’s visa, the Tribunal was required to apply Direction 99.
Section 6 of Direction 99 stipulates that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9 of the Direction. Section 8 is titled “primary considerations” and section 9 is titled “other considerations”. It is unnecessary to refer to the principles stated in para 5.2 for the purposes of the grounds of review.
Section 7 of Direction 99 stipulates as follows:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
In section 8, the primary considerations are described as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Each of those considerations is the subject of further elaboration within section 8.

In section 9, the other considerations are described as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Each of those considerations is the subject of further elaboration within section 9.
Ground 1
Overview
Ground 1 of the application for review concerns the primary consideration described in para 8.3 of Direction 99, being the strength, nature and duration of ties to Australia. By ground 1, the applicant contends that the Tribunal’s conclusion that the strength, nature and duration of the applicant’s ties to Australia weighed neutrally was:
(a)legally unreasonable, irrational or illogical;
(b)based on a finding for which there was no evidence; and/or
(c)the product of a misconstruction of para 8.3 of Direction 99.
Paragraph 8.3 of Direction 99 stipulates as follows:
8.3 The strength, nature and duration of ties to Australia
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
It can be seen that para 8.3 raises a number of considerations under the general subject area of a non-citizen’s “ties to Australia”. First, para 8.3 is concerned with the impact of the decision on the non-citizen’s immediate family members in Australia (subpara (1)). Second, para 8.3 is concerned with the non-citizen’s ties to their children in Australia (subpara (2)). That consideration would appear to be focussed on the impact on the non-citizen of being separated from their children, because the interests of the children are separately considered under para 8.4. Third, para 8.3 is concerned with the non-citizen’s social links generally with Australian citizens or residents (subpara (3)). Fourth, para 8.3 requires the decision-maker to consider “any other ties” and, in doing so, consider the length of time the non-citizen has resided in the Australian community and, amongst other things, consider whether the non-citizen has been ordinarily resident in Australia during and since their formative years (subpara (4)).
Relevant aspects of the Tribunal’s reasons
The Tribunal’s findings with respect to the strength, nature and duration of the applicant’s ties to Australia are recorded at paras 110 to 112 of the Tribunal’s reasons:
110.The applicant has a brother and sister who are living in Australia. His sister is married and living in Queensland while his brother lives in Western Australia. The applicant grandmother and uncle live in New South Wales. In addition, the applicant claims that he has a further three uncles and an aunt who live in Australia. None of his family gave evidence in support of the Applicant. The applicant’s evidence was that he was not close with his family members and that he contacted them on a sporadic basis.
111.The applicant went on to say that he had fallen in with the wrong crowd and as a result he began drinking heavily resulting in his offending. Nevertheless, he claimed that he had friends in Australia who would be devastated if his visa was cancelled, and he was forced to return to South Sudan. Despite this claim the applicant had difficulty directly referring to people who would support him in the community. The applicant gave the Tribunal the names of two individuals he claimed were friends but did not detail how they would support him if released from detention. Mr BA was the only person to give evidence in support of the applicant.
112.Based on the applicant’s evidence, the Tribunal finds that the strength, nature and duration of the applicant’s ties to the Australian community are limited and not of a positive nature. As such, the Tribunal concludes that the applicant’s ties to Australia carries neutral weight.
Applicant’s submissions
The applicant submitted that the Tribunal’s finding of ‘neutral weight’ should be taken in context to mean that the Tribunal assigned ‘no weight’ to the consideration, as opposed to ‘no material weight’. In support of that submission, the applicant argued that the word ‘neutral’, in its ordinary terms, is more apt to describe no weight than it is to describe something less than significant weight or no weight of any significance. The applicant also observed that the Tribunal used the phrase “neutral weight” elsewhere in its reasons where a consideration had no application on the facts (see paras [114], [139] and [140]).
The applicant submitted that, on the evidence adduced before the Tribunal and the findings made by the Tribunal, it was not open to the Tribunal to attribute no weight to this consideration. The applicant pointed to the following matters.
First, the applicant’s Statement of Facts, Issues and Contentions that was before the Tribunal (SFIC) stated:
21. The Applicant has been in Australia since his childhood (15 years of age) and is now 33 years old. He has therefore spent the majority of his life in Australia (18 years) …
22. The Applicant’s only remaining immediate family are in Australia. In his statement, he has described his hope that if he is released from detention, he will be able to reconnect with his grandmother and siblings, and re-establish meaningful relationships with them.
23. The Applicant also has a large extended family in Australia and friends in Australia. He intends to rely on his good friend and relation by marriage, [BA] for support if he is released.
Second, one friend of the applicant, BA, gave evidence in support of the applicant and the applicant named two other friends of the applicant. BA’s statement to the Tribunal was that the applicant is his best friend and that they “remain close, and talk every week”. BA also stated that if the applicant were to be released from immigration detention, he would be able to live with BA.
Third, the applicant has resided in Australia since he was 15 years old, for over half his life.
Fourth, in respect of the applicant’s connection with his family in Australia, a report from a counsellor at Foundation House stated that:
He has family spread throughout Australia. He has a married sister Eimani, 36 years old in Queensland, an unmarried brother Gobi, who is 34 years old in West Australia, His paternal grandmother Rosanna, is almost 90 years old and lives in Sydney with her son, Taban’s uncle. She suffered a stroke 7 years ago. There is a paternal aunt residing in Tasmania and another paternal uncle in Canberra. Taban has intermittent contact with his family.
…
He feels ashamed for his past offending and the pain he has caused others in the past, including his family, in particular his grandmother.
Fifth, the representations made by the applicant to the Minister’s delegate in support of revocation of the cancellation of his visa included:
I fear if the Minister chooses to send me to hell in South Sudan, I would be isolated from my only source of mental peace and comfort (my family) here in Australia. I have no one in South Sudan that I know of to turn to.
I fear my grandmother may die before her time if she learns I have been sent back to South Sudan. She would be grieving a negative outcome to my request for revocation. She would feel like she has not done enough to bring me to safety in Australia, (protecting a grand child).
Sixth, in his statement to the Tribunal, the applicant stated:
28.I have many connections to the Australian community. My grandmother, uncle, and two siblings are now Australian citizens and one day I hope to join them in this great honour.
29. I am in intermittent contact with my siblings via social media. I have not had a close relationship with them in some time, but I know that they care about me, and love me. I am reluctant to burden them with my problems, as they have lives and families of their own, and I do not want to make their lives more difficult.
30. My grandmother and siblings are aware that I am in detention, and that my visa has been cancelled. I last spoke to my grandmother about seven months ago, and she expressed deep concern about my situation. She told me that she brought me out of the lion’s den, and was very distressed that I might be returned to South Sudan, which she thinks is a very dangerous place.
31. I do not contact my grandmother often, because I am really worried about causing her more distress. Likewise, I feel shame and guilt about the position that I am currently in, and for that reason I do not contact my siblings very often, because I do not want them to share in that shame. I hope that if I am released from detention, and am able to lead a more settled and dignified life, that I will be able to have a close relationship with my siblings and grandmother again. They are very important to me, and are the only close family that I have. They motivate me to do better.
32. All of my other family and friends are in Australia. I have extended family in Melbourne that have offered me support. I have a network of good friends. I do not have connections to anyone else outside of Australia.
The applicant submitted that the Tribunal’s reasons reveal no basis for concluding those ties ought to be given no weight, and that it must thus be inferred that the conclusion was based on unreasonable, illogical or irrational reasoning (the subject of ground 1(a)).
The applicant further submitted that, if and to the extent it might be suggested that the allocation of neutral weight was supported by a finding that the applicant’s ties to Australia were ‘not positive’ (i.e. negative), the Tribunal’s reasons do not identify any evidentiary foundation for such a finding. Any such finding would therefore constitute jurisdictional error (the subject of ground 1(b)).
With respect to ground 1(c), the applicant referred to the stipulation in para 8.3(4)(a)(i) of Direction 99 that required the Tribunal to have regard to the length of time that the applicant had resided in the Australia community and that “considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending” (emphasis added). The applicant submitted that the Tribunal made no reference to the applicant spending part of his formative years in Australia and, as such, it should be inferred that the Tribunal failed to have regard to or to apply para 8.3(4)(a)(i).
Minister’s submissions
The Minister submitted that section 6 of Direction 99 requires decision-makers to take into account the considerations identified in sections 8 and 9 “where relevant to the decision”. The Minister relied on the observation of the Full Court in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 at [95] that:
The words “where relevant” in para 6 indicate that the duty to take into account the specified considerations is not an invariable one. Whether they are “relevant” in a particular case is a matter of opinion for the individual decision-maker.
The Minister further submitted that Direction 99 does not prescribe the weight to be given to any particular consideration, referring to the statement of Mortimer J (as her Honour then was) in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 (Singh) at [23] (with whom Raper J agreed).
The Minister argued that the Tribunal’s reasons indicate that it was aware of and considered the applicant’s evidence on the issue of his ties to the Australian community. The Tribunal’s reasons record the following matters:
(a)The applicant’s family all live interstate (at [98]). The applicant has a brother and sister who are living in Australia; his sister is married and living in Queensland while his brother lives in Western Australia (at [110]). The applicant’s grandmother and one uncle live in New South Wales (at [110]).
(b)The applicant contacted his grandmother and two siblings only on a sporadic basis and he last spoke to his grandmother about seven months before the Tribunal proceeding (at [44] and [110]).
(c)The applicant claims to have a total of four uncles and an aunt who are living in Australia, but there was no evidence that the applicant had any contact with any of his uncles or aunt in Australia (at [45]).
(d)The applicant had not informed his family of the Tribunal proceedings, and the Tribunal considered that the applicant’s evidence was that he had “only limited contact with his family” (at [75] and [110]).
(e)There was some evidence of prior education or employment ties (at [49]-[50]).
(f)The applicant has a friend, BA, who had offered the applicant accommodation upon the applicant’s release from detention (at [72]). The applicant also provided the names of two individuals who he claimed were friends (at [98] and [111]).
In respect of ground 1(a), the Minister submitted that a finding of legal unreasonableness is a high bar and requires more than emphatic disagreement with the Tribunal’s decision. Even though a different decision-maker may have given different weight to the applicant’s circumstances, that is insufficient to make out the ground. After considering the applicant’s evidence and circumstances as it did, it was open to the Tribunal to consider his ties to Australia not to be of any significance in the decision-making process and to weigh them neutrally. The Minister characterised the Tribunal’s finding that the applicant’s ties to Australia were of ‘neutral weight’ as a finding that they weighed neither for nor against revocation, that they were not of relevance, or not of persuasive quality.
In respect of ground 1(b), the Minister submitted that the Tribunal did not find that the applicant’s ties to the community were ‘negative’; all the Tribunal found was that the applicant’s ties were “not of a positive nature”. Read fairly and in context, this meant that there was an absence of positive ties with family, friends or community upon which the Tribunal would place weight. The minister further submitted that, even if the Tribunal did find some of the applicant’s ties to be ‘negative’, that would not constitute error as, on the applicant’s own evidence, he had fallen in with the “wrong crowd” (at [111]).
In respect of ground 1(c), the Minister submitted that the Tribunal’s reasons, read as a whole, indicate that the Tribunal had not overlooked the applicant’s claims and evidence concerning the fact that the applicant had spent some of his formative years in Australia. The Tribunal considered those matters (reflective of the level of detail in which the claim was put), but was not prepared to place weight on those matters. The Minister submitted that it was for the Tribunal to determine what weight to give to the applicant’s ties to the community and that it should not be inferred that the Tribunal failed to consider any of the matters it was required to consider by para 8.3 of Direction 99 because it did not make explicit reference to those matters under a particular heading in its reasons.
Consideration
The phrase “neutral weight”, as used by the Tribunal, conveys that the consideration weighs neither for nor against revocation of the cancellation of the visa. That is the ordinary meaning of the word “neutral”, and is the sense in which the Tribunal used the expression at other parts of the Tribunal’s reasons (at [114], [139] and [140]). It is also apparent that the Tribunal used the phrase “neutral weight” in contradistinction to the phrases “little weight” and “significant weight” which are used elsewhere in its reasons (at [88], [107], [133]). The question raised by ground 1 is whether the Tribunal’s conclusion that the applicant’s ties to Australia weigh neither for nor against revocation of the cancellation of the visa bespeaks jurisdictional error.
It is well-established that the weighing of representations and evidence is a matter for the administrative decision-maker: Abebe v The Commonwealth (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). This reflects the limited role of the courts in reviewing administrative decisions: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J). It is also well established, however, that the Tribunal’s assessment of representations and evidence must occur within the bounds of rationality and reasonableness: Plaintiff M1 at [25].
The extent to which it is lawfully permissible for a direction made under s 499 of the Act to dictate, to a decision-maker exercising power under s 501CA(4), the weight to be given to a factor or consideration has not been finally determined. While s 499(2A) stipulates that a person or body (to whom a direction is given under s 499(1)) must comply with the direction, s 499(2) states that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Act. The cases confirm that a failure by a decision-maker to comply with a direction given under s 499(1) (including a failure to construe the direction correctly) may constitute jurisdictional error: see Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [34]-[35] and the authorities there cited; Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 at [122]. On the other hand, there is authority for the proposition that a direction given under s 499(1) provides no more than guidance on the exercise of discretionary powers and that directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter: Singh at [23] (Mortimer J, as her Honour then was, with whom Raper J agreed), citing Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 (Jagroop) at [55] and [78] (Kenny and Mortimer JJ, with whom Dowsett J agreed).

In one sense, Direction 99 does purport to direct a decision-maker with respect to the weight to be given to particular considerations in the course of making a decision under s 501CA(4). However, most of the stipulations in the Direction concern the relative weight to be given to the considerations, not the absolute weight. For example, section 7 of the Direction stipulates that “primary considerations should generally be given greater weight than the other considerations”. Similarly, para 8.3, with which this ground of review is concerned, stipulates that the decision-maker should give “more weight” or “less weight” to particular circumstances. While para 8.3(4)(a)(i) stipulates that “considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years”, read in context the stipulation should be understood as a direction concerning the relative weight of the consideration as opposed to its absolute weight. The force of the observations made in Jagroop and Singh, referred to above, lies in the fact that the weight that is ultimately given to any particular consideration in making a discretionary decision depends upon the facts and circumstances bearing upon the consideration. In a relative sense a consideration may carry more weight than another consideration, but on given facts it may carry little or no weight (because the circumstances to which the consideration pertains do not arise or do not arise strongly).
The stipulations in Direction 99 must be understood in light of the foregoing principles. The Direction identifies mandatory considerations in the Tribunal’s exercise of power under s 501CA(4) and, in the sense described above, directs the relative weight to be given to the different considerations. A failure by a decision-maker to comply with the Direction may constitute jurisdictional error. However, what that means in practice is that a decision-maker is required to consider the representations and evidence before them in light of the mandatory considerations and, as part of an overall assessment, attribute such weight to each mandatory consideration as the decision-maker considers appropriate having regard to their assessment of the representations and evidence.
In the present matter, the Tribunal did not make an express finding on the consideration described in para 8.3(1): any impact of the decision on the applicant’s immediate family members in Australia. Nevertheless, I consider that the Tribunal’s statements at [110] of its reasons addressed that consideration. The Tribunal’s statements were that none of the applicant’s family gave evidence in support of the applicant, and the applicant’s evidence was that he was not close with his family members and that he contacted them on a sporadic basis. Read fairly and in context, the Tribunal’s statements can be understood as a finding that a decision not to revoke the cancellation of the applicant’s visa had not been shown to be likely to have a material negative impact on the applicant’s immediate family members in Australia. The implicit conclusion is that this consideration did not weigh in favour of revocation. While different decision-makers might make a different assessment, no jurisdictional error is shown in that conclusion.
Nor did the Tribunal make an express finding on the consideration described in para 8.3(3). Again, though, I consider that the Tribunal’s statements at [111] of its reasons addressed that consideration. In that paragraph, the Tribunal had regard to the applicant’s social links with Australian citizens. The Tribunal stated that the applicant said that “he had fallen in with the wrong crowd”; he claimed that he had friends in Australia who would be devastated if his visa was cancelled; however, the applicant had difficulty directly referring to people who would support him in the community; the applicant gave the Tribunal the names of two individuals he claimed were friends; and BA was the only person to give evidence in support of the applicant. The implicit conclusion is, again, that this consideration did not weigh in favour of revocation. In my view, no jurisdictional error is shown in that conclusion.
It can also be accepted that the Tribunal’s reasons do not make any express or implicit findings on the consideration described in para 8.3(4). In that regard, the applicant’s arguments focussed on subpara (i) which stipulates that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. In that regard, the applicant argued that he had made representations to the Tribunal that he had been in Australia since childhood, having arrived when he was 15 years old, and has been in Australia ever since. While the Tribunal noted that the applicant arrived in Australia when he was 15 years old (at [4]), the Tribunal did not expressly address para 8.3(4)(i), and made no finding whether the applicant has been ordinarily resident in Australia during and since his formative years.
In my view, the Tribunal’s failure to address expressly the consideration described in para 8.3(4) does not constitute jurisdictional error. Para 8.3(4) is concerned with “any other ties” that the applicant has to the Australian community. The applicant did not identify any material facts or matters relevant to this consideration that the Tribunal failed to take into account. The representations advanced by the applicant were focussed upon his family ties in Australia, and to a lesser extent his social ties, which were considered by the Tribunal. No other material ties were raised by the applicant. The consideration described in para 8.3(4)(i), the circumstance that a non-citizen has been ordinarily resident in Australia during and since their formative years, only arises as a mandatory consideration as part of the assessment of other ties under para 8.3(4). It is a consideration that bears upon the weight to be given to the other ties. It is not a standalone consideration. In the absence of representations or evidence concerning other ties, the Tribunal was not required to give a separate weighting to that consideration. Further and in any event, the Tribunal’s reasons expressly note that the applicant arrived in Australia when he was 15 years old and has lived in Australia ever since. It cannot be said that that fact was overlooked by the Tribunal in its assessment.
The applicant has not demonstrated that the Tribunal’s reasoning with respect to para 8.3 of Direction 99 is affected by jurisdictional error. Accordingly, ground 1 is rejected.
Ground 2
Overview
By ground 2, the applicant contends that the Tribunal:
(a)failed to read, identify, understand and evaluate the applicant’s representations – and/or failed to consider the applicant’s clearly articulated arguments – that the cancellation decision should be revoked because:
(i)he faced a risk of physical and/or psychological harm in South Sudan; and/or
(ii)the risk of physical and/or psychological harm to the applicant constituted an impediment to removal pursuant to para 9.2 of Direction 99; or
(b)misconstrued or misapplied para 9.2 of Direction 99.
It can be seen that, by ground 2, the applicant contends that the Tribunal failed to take into account his representations concerning the risk of harm upon return to South Sudan, but the contention is put on two bases.
The first basis is that the Tribunal failed to have regard to a material representation raised by the applicant, being an error of the kind discussed in cases such as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389, Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 and Plaintiff M1.
The second basis is that the Tribunal failed to comply with Direction 99 which, by para 9.2, required the Tribunal to have regard to impediments to removal faced by the applicant. Paragraph 9.2 deals with one of the “other considerations” which a decision-maker is required to take into account, being the extent of impediments that the non-citizen may face if removed from Australia. Relevantly, para 9.2 states as follows:
9.2 Extent of impediments if removed
(1)Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Relevant aspects of the Tribunal’s reasons
The Tribunal largely structured its reasons by reference to the mandatory considerations in Direction 99. After addressing the primary considerations enumerated in section 8 of Direction 99, the Tribunal commenced a new section of its reasons titled “Other Considerations” and addressed the considerations enumerated in section 9 of Direction 99. At [119], the Tribunal stated:
In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, the Tribunal must consider the “other considerations” listed in Direction 99. These considerations are not exhaustive.
In that paragraph of its reasons, the Tribunal acknowledged, correctly, that the considerations enumerated in Direction 99 are not exhaustive of the considerations that may need to be considered.
Next, under the heading “Legal consequences of the decision”, the Tribunal discussed para 9.1 of Direction 99. At [121], the Tribunal stated:
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan. The Tribunal notes and accepts the risks of harm that the applicant may face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
By that paragraph, the Tribunal acknowledged that the applicant’s fear of harm if removed to South Sudan is distinct from non-refoulement obligations which may be owed (which is referred to in para 9.1 of Direction 99). It is not entirely clear from that paragraph whether the Tribunal accepted that the risk of harm to the applicant is distinct from the extent of impediments if removed (which is referred to in para 9.2 of Direction 99).
The Tribunal then referred to Plaintiff M1 and stated (at [123]) that the Tribunal intends to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa, but that does not mean that the Tribunal ignores the applicant’s representations. Thus, the Tribunal appeared to acknowledge that it was required to consider the applicant’s claims to fear harm on return to South Sudan even though it would not consider whether the applicant is owed non-refoulement obligations.
Under a sub-heading “Applicant’s representations as to risk of harm”, the Tribunal commenced with an assessment (at [125]) that: “The applicant made minimal representations concerning risk of harm in South Sudan”. It will be necessary to return to that statement, as it is very hard to reconcile it with the representations made by the applicant and the country information submitted to the Tribunal concerning the situation in South Sudan.
After citing the guidance provided by the High Court in Plaintiff M1 at [37] and [39], the Tribunal then made the following findings with respect to the risk of harm faced by the applicant if returned to South Sudan (emphasis added):
128.The applicant said he feared being removed from Australia to South Sudan, where he claimed as an ethnic Madi he could be killed by members of the Sudan People’s Liberation Army (SPLA) who had killed his father and grandfather and abducted his mother. His evidence was that if he as returned to South Sudan, he would be homeless and have no family or social support because he does not know anyone in South Sudan and no longer has any family remaining in the country. In addition, he claimed that as a returnee from the west with perceived wealth, the applicant claimed he would be a target.
129.The Tribunal has considered the country information provided by the applicant, including the DFAT Country Information Report for South Sudan dated 5 October 2016 (DFAT report), Human Rights Watch World Report 2023 – South Sudan and Amnesty International report 2022/2023 - South Sudan. The country information reports that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. It is reported that after years of war, those returning to South Sudan many of their former homes no longer exist or have been claimed by others. In addition, many areas are without services and there are no opportunities for employment. In addition, returning to some areas can inflame ethnic tensions and disputes.
130.While not making a finding in relation to any protection claim the applicant may wish to advance, based on the available country information the Tribunal does not necessarily accept that as an ethnic Madi, the applicant would be at risk of harm if he returns to South Sudan. Nevertheless, the Tribunal accepts that there may be other claims for protection the applicant is able to make. The Tribunal accepts there may be other reasons for him being harmed if he is returned to South Sudan. It is not in dispute that as a child the applicant left South Sudan and spent time in a Ugandan refugee camp due to the war prior to traveling to Australia. The applicant would have limited family support and other network if removed to South Sudan. This is a factor that weighs in favour of revocation of the cancellation decision. However, in circumstances where it is open for the applicant to make a protection visa application the Tribunal gives it less weight.
In the foregoing paragraphs, the Tribunal accepted, in a seemingly reluctant manner, that the applicant would be at risk of harm if returned to South Sudan. The reluctance seems difficult to reconcile with the Tribunal’s summary of the country information: that the situation in South Sudan remains dire; there are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system; and that South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. More significantly, however, is the concluding sentence of [130] – that while the risk of harm that would be faced by the applicant is a factor that weighs in favour of revocation, the Tribunal gives it less weight because it is open for the applicant to make a protection visa application. It will be necessary to return to that aspect of the Tribunal’s reasons.
Under a sub-heading “Extent of impediments if removed”, the Tribunal made the following findings:
136. The applicant meets the diagnostic criteria for with [sic] post-traumatic stress disorder and suffers from the early stage of liver damage. It is reported that South Sudan’s population has extremely poor access to health care. Mental health services are reported to be in a precarious state. There is only one Hospital in Juba treating mental health. The hospital has limited drugs, twelve beds with one psychologist and two clinical officers treating mental health patients.
137. Based on the available country information, the fact that the applicant left South Sudan when he was a young child, has no network of family or friends to support him in South Sudan, the Tribunal accepts that the applicant would find it difficult if returned to South Sudan. However, the Tribunal notes that the applicant is an intelligent and articulate person who has an education. Given the applicants educational standard and his work experience, the chance of him establishing himself in the country is greater than for a person with less qualifications. Nevertheless this is a factor that weighs in favour of revocation of the cancellation decision.
It is apparent that, in those paragraphs, the Tribunal is not referring to or taking into account the applicant’s claim to fear harm from violence and crime. That is expressly so with respect to [136], but it is also implicit from the language of [137]. The Tribunal’s finding that the applicant would “find it difficult” if returned to South Sudan but that he is “an intelligent and articulate person” indicates that the Tribunal is addressing the applicant’s economic opportunity in South Sudan (as the Full Court concluded in similar circumstances in GBV18 v Minister for Home Affairs (2020) 274 FCR 202 (GBV18) at [41]).
Applicant’s submissions
By ground 2, the applicant submitted that he clearly articulated to the Tribunal two arguments based on established facts:
(a)that he faced a risk of physical violence and crime which would affect his capacity to establish himself in South Sudan, which bears upon para 9.2 of Direction 99; and
(b)that he faced a risk of physical/psychological harm on return to South Sudan due to violence and crime.
The applicant relied on statements in his application for revocation of the Minister’s decision claiming that he would be killed if returned to South Sudan. The applicant also relied on the following paragraphs in the applicant’s statement to the Tribunal, which are under the heading ‘Impediments to my return to South Sudan’:
51. Aside from the historical persecution I have faced, deportation to South Sudan would pose a further immediate risk to my safety due to my:
a. Imputed anti-government political opinion due to my Madi ethnicity, or my family’s reputation for pacifism and history of refusal to fight for any faction;
b. perceived wealth due to existence in a third country; and
c. Madi ethnicity.
I believe the authorities and rebel factions would persecute me if I were to be deported to South Sudan for these reasons.
52. I am also afraid that I would be harmed as a result of my mental health problems. There is a lot of stigma about mental health in South Sudan, and if anyone knew about my mental health issues, they might lock me up. I do not know a lot about the conditions in South Sudan, but I can imagine that I would not be able to access treatment for mental health conditions of alcohol use disorder, depression and PTSD. It seems like a sure thing that my mental health would deteriorate if I were to be returned to South Sudan.
53. If I were deported to South Sudan, I would have no family or community support. I would be forced into a life of poverty and helplessness.
54. In such circumstances, I fear my deportation to South Sudan would lead me to be detained, harmed or killed.
55. Should I be unsuccessful in my current appeal before the Tribunal, I intend to lodge an application for a Protection Visa, as I am afraid of return to South Sudan.
The applicant also relied on the following paragraphs in his SFIC, in relation to his fear of harm if returned, including:
35. As to the refugee criteria in s 5H and 5J of the Act the applicant faces a real chance of serious harm for reason of:
a) His race, Madi, due to the ethnic nature of the violence;
b) For his imputed anti-government political opinion;
c) The Applicant’s membership of a particular social group, returnee from the West and/or young single male of fighting age;
d) The applicant’s membership of a particular social group, a person with a mental health condition
The harm could take the form of abduction, physical violence, detention and related torture, forced recruitment into militia groups, or being unable to subsist.
36. The applicant satisfies the complementary protection criteria in s 36(2)(aa) on the same basis. The applicant also claims to face a real risk of significant from violent crime. That risk is personal to the applicant as a returnee from the west without support.
37. It is apparent from the DFAT Country Information Report for South Sudan dated 5 October 2016, and a more recent report from the United Nations High Commissioner for Refugees (UNHCR) that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status.

The applicant also referred to the applicant’s submissions in reply before the Tribunal, which included the following:
Risk of Harm from Violence in South Sudan
4. The Minister notes the applicant’s claim that he may face harm because of widespread crime and generalised violence should be considered in relation to impediments to removal in para 9.2.
5. The impediments to removal consideration concerns socio-economic matters. The risk of generalised violence and crime would logically affect the applicant’s capacity to establish himself in South Sudan both due to its impact on opportunity and the applicant’s fear of such violence and crime.
6. However, the applicant also makes a specific separate claim that another reason to revoke the decision is his risk of physical and psychological harm on return to South Sudan in and of itself. That should be considered separately from para 9.2.
7. In relation to the claim to fear physical harm from violent crime, the applicant’s risk is elevated as he is a returnee from the west with no support in South Sudan. That claim is supported by the OSAC South Sudan Security Report which states at AB 216 – 217:
Violent crime (e.g., murder, armed robbery, home invasion, cattle raiding, kidnapping, harassment) is rampant. In Juba, the most frequently reported violent crimes include armed robbery, home invasion, and carjacking.….Gang-on-gang violence has also been noted inside Juba. Gang-related violence occurs at all hours and, while violent actions are largely directed at gang members, collateral victimization to those in the vicinity is a concern. Gang-affiliated robberies have been reported more frequently and do target individuals and small groups. Those traveling alone or in small groups during the late evening hours (especially those on foot) are often the target of armed robbery.
Crime during the daytime has increased. Home/compound invasions are common, especially in facilities with weak security, poor exterior lighting, and poor access control. Generally, perpetrators do not kill or seriously harm their victims, but commonly threaten/use force. Attempts to resist perpetrators provoke violence.
Outside Juba, road ambushes and banditry are common, indiscriminate, and often involve violence.
…
Kidnapping Threat
The U.S. Department of State has included a Kidnapping “K” Indicator on the Travel Advisory for South Sudan, indicating that criminal or terrorist individuals or group have threatened to and/or have seized or detained and threatened to kill, injure, or continue to detain individuals in order to compel a third party (including a governmental organization) to do or abstain from doing something as a condition of release.
The applicant will be at greater risk as a member of a minority tribe, with no support. There is also a risk if the applicant’s time in Australia is discovered he could be viewed as having access to funds or wealth making him a target for crime or kidnapping. The applicant’s capacity to speak English (see below) may itself be an indicator of wealth.
In oral argument, the applicant placed particular emphasis on the Tribunal’s failure to address his claim to fear harm from violent crime. The applicant submitted that, while the Tribunal considered the applicant’s protection claims (at [128]-[130]), it failed to consider whether the risk of violence and/or harm, particularly from violent crime, was another reason for revocation in and of itself (that is, apart from para 9.2 of Direction 99). The applicant argued that, apart from the requirements of Direction 99, the Tribunal was required to read, identify, understand and evaluate the applicant’s claims to fear harm due to violence and crime, but there is no evidence that the Tribunal took this step. The applicant argued that the Tribunal made an error of the type described in GBV18 at [40]-[45].
In respect of para 9.2 of Direction 99, the applicant submitted that the Tribunal did not refer to his representations concerning the risk of harm from violence and crime. The applicant argued that this supports an inference that it was not considered by the Tribunal or that the Tribunal misconstrued or misapplied this paragraph of Direction 99. While the Tribunal referred to the applicant’s claims (at [128]) and the country information (at [129]), the applicant argued that this is not sufficient as para 9.2 required a consideration of how the violence and crime would personally affect the applicant’s capacity to re-establish himself. The applicant said that there is no evidence that the Tribunal engaged in that analysis.
Minister’s submissions
The Minister submitted that the Tribunal was required to read, identify, understand and evaluate the applicant’s claims that he would face harm in South Sudan from generalised violence and crime, but where and how the Tribunal brought those matters to bear in the evaluative exercise was a matter for it. The circumstances that the applicant claimed he would face if returned to South Sudan were potentially relevant in different ways, namely the legal consequences of the decision (para 9.1), the extent of impediments if removed (para 9.2) and more broadly to whether there was ‘another reason’ for revoking the cancellation of the applicant’s visa. The Minister submitted that the Tribunal recognised that the risks of harm may be relevant to multiple considerations (at [121]).
The Minister submitted that the Tribunal’s reasoning indicates that it considered the applicant’s representations that he feared harm due to generalised violence and crime in South Sudan as it saw fit as part of the overall evaluation of the applicant’s case. In particular, the Tribunal accepted that “the situation in South Sudan remains dire” and that it continued to suffer “communal conflict” (at [129]). The Tribunal did not necessarily accept that the applicant would be at risk of harm as an ethnic Madi, but otherwise did not (and did not purport to) determine the remainder of his claims to fear harm. The Tribunal accepted that there may be “other reasons for him being harmed if he is returned to South Sudan” (at [130]) and, because of the applicant’s limited family support and other networks in South Sudan, the Tribunal weighed this factor in favour of revocation of the cancellation decision. The Minister submitted that the dire situation in South Sudan (which includes the generalised risk of violence and crime) was therefore taken into consideration and given weight separately to any non-refoulement obligations the applicant may be owed. The Minister further submitted that it was valid for the Tribunal, in considering the risk of harm to the applicant, to take into account the fact that he may be granted a protection visa in the future. That is, the weight the Tribunal assigns to the risk of harm consideration may be tempered by the possibility that the applicant is never returned to South Sudan, in which case the claimed harms would not eventuate.
With respect to para 9.2 of Direction 99, the Minister submitted that the Tribunal found that the applicant would find it difficult if returned to South Sudan, based on the available country information and his lack of familial and social support. The Minister said that these findings indicate that the Tribunal considered the other difficulties that the applicant had raised as a reason to set aside the revocation of his visa, and having considered those matters, there is no reason to think that the Tribunal did not bring them to bear in the overall exercise of deciding whether there was ‘another reason’ to set aside the cancellation decision.
Consideration
In Plaintiff M1, the majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) summarised the necessary requirement to consider an applicant’s claims in the context of representations to the Minister to revoke the cancellation of a visa made under s 501CA of the Act (at [24]-[27], citations omitted):
24.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, 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.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26.Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
In respect of a decision-maker’s approach to a claim that the applicant is owed non-refoulement obligations, the majority concluded (at [30]) that no error arises where the decision-maker defers assessment of the question whether the applicant is owed non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa. However, their Honours further stated (at [39]):
Where the cancelled visa is not a protection visa and a decision‑maker defers assessment of whether non‑refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision‑maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
Having regard to the foregoing principles, in my view the Tribunal’s reasons reveal that the Tribunal failed to take into account the risk of harm faced by the applicant upon return to South Sudan in accordance with its statutory obligations, and its reasons thereby involved jurisdictional error.
In its reasons, the Tribunal accepted (at [130], somewhat reluctantly) that the applicant would be at risk of harm if removed to South Sudan, and concluded that this is a factor that weighs in favour of revocation of the cancellation decision. However, the Tribunal gave that consideration “less weight” for the reason that it is open for the applicant to make a protection visa application. That is not a logical, or lawful, basis upon which to discount the weight to be given to the risk of harm.
The risk of harm to the applicant from violence and crime upon removal to South Sudan is not reduced by reason that the applicant may make a protection visa application. Such an application may be refused or accepted. The refusal of a protection visa does not necessarily negative the risk of harm in this case, which is predicated on the extent of crime and general lawlessness in South Sudan. While the grant of a protection visa will prevent the applicant being removed to South Sudan, the grant does not logically bear upon the risk of harm if removed (which is the relevant issue before the Tribunal).
It follows that the Tribunal erred in attributing less weight to the risk of harm faced by the applicant if removed to South Sudan by reason that the applicant might apply for a protection visa. As concluded earlier in these reasons, it is clear that the Tribunal did not separately consider the risk of harm to the application in connection with para 9.2 (impediments to return), at [136] and [137].
Given the foregoing conclusion, it is not strictly necessary to consider whether, apart from the above error, the Tribunal gave due consideration to the applicant’s claims to fear harm upon return to South Sudan. However, it can be observed that the Tribunal’s reasons in this matter bear many similarities with the Tribunal’s reasons that were considered by the Full Court in GBV18. In that case, the Full Court concluded that the Tribunal had failed to meaningfully engage with the appellant’s claim that he was at risk of harm by physical violence if he returned to South Sudan (at [39]). In the present case, the Tribunal found (at [129]) that the country information reports that the situation in South Sudan remains dire; there are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system; and South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. However, the Tribunal then proceeded to assess the risk of harm to the applicant through the lens of non-refoulement obligations (at [130]). Beyond the lens of non-refoulement obligations, the Tribunal’s reasons merely state that the Tribunal accepts that “there may be other reasons for [the applicant] being harmed if he is returned to South Sudan” (at [130]). It is not clear what is being referenced by the Tribunal in that sentence, but it hardly demonstrates a proper engagement with the circumstances that exist in South Sudan.
Ground 2 should be upheld.
Ground 3
Overview
By ground 3, the applicant contends that the Tribunal failed to read, identify, understand and evaluate the applicant’s representation – and/or failed to consider the applicant’s clearly articulated argument – that the cancellation decision should be revoked because he could suffer a relapse of his alcohol addiction on return to South Sudan, which could lead to him suffering physical or mental harm and/or be an impediment to removal pursuant to para 9.2 of Direction 99. The terms of para 9.2 of Direction 99 have been reproduced earlier.
Relevant aspects of the Tribunal’s reasons
The Tribunal’s assessment of the consideration set out in para 9.2 has also been reproduced earlier. Nevertheless, it is helpful to repeat that assessment (at [136]-[137]):
136.The applicant meets the diagnostic criteria for with post-traumatic stress disorder and suffers from the early stage of liver damage. It is reported that South Sudan’s population has extremely poor access to health care. Mental health services are reported to be in a precarious state. There is only one Hospital in Juba treating mental health. The hospital has limited drugs, twelve beds with one psychologist and two clinical officers treating mental health patients
137.Based on the available country information, the fact that the applicant left South Sudan when he was a young child, has no network of family or friends to support him in South Sudan, the Tribunal accepts that the applicant would find it difficult if returned to South Sudan. However, the Tribunal notes that the applicant is an intelligent and articulate person who has an education. Given the applicants educational standard and his work experience, the chance of him establishing himself in the country is greater than for a person with less qualifications. Nevertheless this is a factor that weighs in favour of revocation of the cancellation decision.
Applicant’s submissions
The applicant submitted that he made a substantial and clearly articulated representation to the Tribunal that he would face difficulties in establishing himself in South Sudan, and potentially face a risk of harm, due to his alcohol addiction. The applicant referred the Court to the following materials that were before the Tribunal.
The applicant’s SFIC included the following representations:
(a)The applicant left home at around the age of 17 and started drinking alcohol at that time.
(b)The applicant has been assessed at various times over the last ten years as suffering from or experiencing alcohol use disorder.
(c)The applicant has taken steps to address the causes of his offending. He ceased drinking alcohol while in prison and has participated in a number of other activities since being in immigration detention aimed at addressing his offending, including counselling for alcohol use disorder.
(d)The applicant’s recent trauma-focused counselling will improve the likelihood that he will be able to overcome his alcohol use disorder.
(e)On release from detention, the applicant will have good support and has made contact with Anglicare’s Alcohol and Other Drug program, and has scheduled an assessment with a view to receiving ongoing support.
(f)If returned to Sudan, the applicant’s mental health may deteriorate and could cause him to experience depression and a relapse related to his alcohol use disorder.
The foregoing statements were supported by statements to similar effect in the applicant’s witness statement before the Tribunal.
The applicant’s reply submissions before the Tribunal included the following representations:
(a)The critical issue in relation to risk of re-offending is the applicant’s capacity to abstain from alcohol. Despite previous failures, the applicant has good prospects on release from detention because he has engaged with counselling services.
(b)The applicant is also taking naltrexone to reduce alcohol cravings. The WHO reports there is no data on whether naltrexone is available in South Sudan. Given the limited public health facilities in South Sudan, it can be inferred it is unlikely to be readily available.
(c)The applicant is at severe risk of a deterioration of his mental state in South Sudan and relapsing into alcohol abuse. In such circumstances he is at risk of physical violence from authorities and being detained in custody in what the US State Department described as ‘life threatening’ conditions in its 2023 Human Rights Report. These matters are impediments to the applicant establishing himself relevant to para 9.2. The risk of physical and mental harm is also put separately as another reason the cancellation ought to be revoked.
The applicant noted that the Tribunal, for the purposes of assessing the risk of the applicant re-offending, accepted that the applicant suffered from alcohol addiction (at [101]).
The applicant submitted that, in addressing impediments to removal, the Tribunal expressly referred to the applicant meeting the diagnostic criteria for PTSD and having liver damage (at [136]). However, the Tribunal made no reference to the risk of the applicant’s alcohol addiction relapsing in South Sudan. The applicant submitted that it can be inferred the Tribunal failed to consider his alcohol addiction and the concomitant risk of physical harm if removed. The applicant submitted that where two related but distinct matters, here being alcohol addiction and PTSD, were raised as the most important matters going to his health as impediments, the Tribunal’s express reference to one of them (PTSD) and complete failure to refer to another (alcohol addiction) supports an inference that the second was not considered.
Minister’s submissions

The Minister submitted that the representations made to the Tribunal by the applicant were to the effect that his alcohol use disorder was a facet of his mental ill-health. The applicant represented to the Tribunal that, if returned to South Sudan, his mental health would deteriorate which would cause him to experience depression and a relapse related to his alcohol use disorder. The Minister argued that it was for this reason that the Tribunal folded its consideration of the risk of alcohol addiction relapse into its overall consideration of mental health deterioration. The Minister further submitted that the reason PTSD was mentioned expressly in the Tribunal’s reasons was because there was some contention as to whether there was sufficient material to find a diagnosis of PTSD, but the alcohol issue was never in contention so it was unnecessary to refer to it specifically.
The Minister further submitted that the applicant’s history of alcohol abuse and relapses was well documented in evidence before the Tribunal, and it was also a matter that was potentially relevant to numerous Direction 99 considerations. In considering the applicant’s risk of reoffending, the Tribunal found (based on his previous failure to seek assistance for his addiction, lack of engagement with community services and lack of family and community support) that the applicant would not refrain from using alcohol (at [101]) and impliedly found that he would relapse if released from detention. The Minister submitted that it is unlikely that, despite its lengthy discussion of the applicant’s history of alcohol addiction relapses and finding of a likely future relapse, the Tribunal would have forgotten these matters when considering the impediments the applicant would face if removed to South Sudan. The Minister submitted that the Tribunal can be taken to have been aware of the evidence and its other findings on those matters when it came to deal with the extent of impediments if removed, and that it should be inferred that these matters were borne in mind and brought into the Tribunal’s findings – including the Tribunal’s finding of the “extremely poor access to health care” in South Sudan, its consideration of mental health care services, and its finding that “the applicant would find it difficult if returned to South Sudan”.
Consideration
Contrary to the submission advanced by the Minister, the materials before the Tribunal demonstrate that the applicant made a clearly articulated claim that, if returned to South Sudan, his mental health may deteriorate and could cause him to experience both depression and a relapse related to his alcohol use disorder. The claim as made by the applicant concerns two impediments, not one, with a relapse of alcohol use disorder being one of them.
The relevant question is whether the Tribunal considered that claim in accordance with its statutory obligations. The applicable principles governing that question were explained by the majority in Plaintiff M1, which have been reproduced earlier. There was no dispute between the parties with respect to those principles.
It can be accepted, as submitted by the Minister, that: the applicant’s history of alcohol abuse and relapses was well documented in evidence before the Tribunal; it was a matter that was potentially relevant to numerous Direction 99 considerations; the Tribunal engaged in a lengthy discussion of the applicant’s history of alcohol abuse and relapses; and the Tribunal found, in the context of the risk of re-offending, that the applicant will not refrain from using alcohol in the future. However, contrary to the submission advanced by the Minister, those matters do not support a conclusion that the Tribunal took into account the applicant’s alcohol addiction when considering impediments to removal. Rather, those matters support the opposite conclusion: that the Tribunal did not consider that the applicant’s alcohol addiction was relevant to that consideration and ignored it.
The Tribunal’s reasons at [136] commence with an acceptance that the applicant suffers from two health conditions: PTSD and early stage liver damage. Whilst the applicant’s alcohol use disorder is likely to be the cause of the liver damage, alcohol use disorder is a separate health condition to liver damage (to state the obvious, the former is a mental health condition and the latter is a physical health condition). The Tribunal’s omission of any reference to the applicant’s alcohol use disorder appears to be deliberate, signifying that the Tribunal did not consider that the alcohol use disorder was relevant to the Tribunal’s assessment. That conclusion is reinforced by the Tribunal’s evidentiary reference in support of the finding that the applicant suffers from early stage liver damage. In footnote 137, the Tribunal referred to a report prepared by Therese Wilkinson dated 29 April 2021 titled “Mental Health Community Corrections Screening Program – Sunshine Magistrates Court”. The report primarily concerns the applicant’s alcohol use disorder, which is discussed at length in the report. Liver damage is mentioned in two sentences in the report, but is not the focus of the report. The fact that the Tribunal isolated liver damage as a health condition that was relevant to impediments to removal signifies that the Tribunal did not regard alcohol use disorder as relevant.
That conclusion is reinforced by the balance of the Tribunal’s relatively brief reasons at [136] and [137]. While the balance of [136] refers to the poor health care services in South Sudan, those considerations must be seen as being relevant to the two health conditions identified by the Tribunal at the commencement of [136] – PTSD and liver damage. The Tribunal’s reasons at [137] are not concerned with health issues but with economic issues – the ability of the applicant to establish himself in South Sudan. That is made clear by the Tribunal’s reference to the applicant’s educational standard, intelligence and work experience.
In my view, the Tribunal was required to consider the applicant’s claim that his alcohol use disorder would constitute an impediment he would face if removed from Australia to South Sudan, but the Tribunal failed to do so. Although each case turns on its own facts, the Tribunal’s failure in this case is equivalent to the facts and circumstances considered by the Court in WCGD v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 180 ALD 355 (at [46]-[47]) and Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392 (at [29]-[31]).
Ground 3 should be upheld.
Ground 5
Overview
By ground 5, the applicant contended that the Tribunal asked itself the wrong question, misconstrued/misapplied Direction 99, had regard to an irrelevant consideration and/or engaged in reasoning that was irrational, illogical, or unreasonable in moderating the weight to be given to the legal consequences of the decision because the applicant was a risk of re-offending and causing harm to the Australian community.
As noted earlier, one of the “other considerations” that a decision-maker is required to take into account under section 9 of Direction 99 is the legal consequences of the decision.
Paragraph 9.1(1) stipulates that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section and, in the meantime, detention under s 189 (whilst noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen).
Paragraph 9.1.2 provides guidance to decision-makers where a non-citizen raises a claim that they are owed non-refoulement obligations.
Paragraph 9.1.2(2) states that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the s 501/s 501CA stage to consider non-refoulement issues in the same level of detail, as those types of issues are considered in a protection visa application and a decision-maker, in making a decision under s 501/s 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by s 36A of the Act, before consideration is given to any character or security concerns associated with them.
Paragraph 9.1.2(3) states that, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Relevant aspects of the Tribunal reasons
The Tribunal commenced its consideration of the matters referred to in para 9.1 of Direction 99 at [120] of its reasons.
At [121], the Tribunal noted that the applicant raised a claim that Australia would breach its non-refoulement obligations if the applicant were returned to South Sudan. At [122], the Tribunal noted that the applicant had not applied for a protection visa but had indicated that he will do so if he is not successful in his application for revocation of the cancellation decision. At [123] and [124], the Tribunal recorded that it intended to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa.
At [125]-[130], the Tribunal considered the applicant’s claims to fear harm if returned to South Sudan. Then, at [131]-[133], the Tribunal considered the effects of ongoing detention of the applicant if the Tribunal refused the application for revocation and the applicant subsequently made a protection visa application. The Tribunal reasoned as follows:
131. If the applicant was to make a protection visa application, then he would face a further period in detention whilst any application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence to suggest that re-settlement or the exercise of a personal discretion would be considered. While the Tribunal notes that given the applicant is in dentition it is open for him to request an application for protection be heard and determined expeditiously. Nevertheless, it accepts that the applicant would face an extended period in detention.
132. The Tribunal accepts that the applicant’s likely ongoing detention would impact adversely on his mental health. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Kenny and Mortimer JJ considered the impact of further detention:
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end...
133. However, in this case the Tribunal has found that there is a real risk the Australian community will be harmed if the applicants visa is restored. The Tribunal notes that the applicant is receiving counselling services while in detention that can assist the applicant in dealing with any adverse impact on his mental health while being held in detention. In such circumstances the Tribunal gives the fact that the applicant will spend more time in detention little weight in favour of revoking the decision to cancel his visa.
Ground 5 is directed to the Tribunal’s decision, at [133], that it would give the fact that the applicant will spend more time in detention little weight in favour of revoking the decision to cancel his visa.
Applicant’s submissions
The applicant submitted that the Tribunal’s reasons indicate that the Tribunal gave the ongoing detention of the applicant less weight because the applicant was a risk to the community.
The applicant submitted that the structure of Direction 99 is that the legal consequences of the decision (the subject of para 9.1) are a separate and distinct consideration to protection of the community (the subject of para 8.1). It followed, on the applicant’s submission that the protection of the community was irrelevant to determining the significance and relevance of the legal consequences of the decision. The applicant further submitted that the non-punitive nature of immigration detention necessarily means that it is treated by the Act and Direction 99 (and must be treated by the Tribunal) as a consequence that bears no relation to the risk a person poses to the community.
The applicant submitted that the Tribunal, in finding the applicant’s detention weighed less favourably because he was a risk to the community, took into account a matter that was irrelevant to the legal consequences of the decision. The applicant accepted that, in the overall assessment of the different considerations, the Tribunal was required to weigh the applicant’s risk of re-offending against the applicant’s ongoing detention. The applicant argued that the Tribunal erred, however, in discounting the weight to be given to ongoing detention before the ultimate weighing exercise. The applicant submitted that the approach taken by the Tribunal could also be characterised as irrational for the same reason. Rationally, the burden of detention upon the applicant is not affected by the applicant’s risk to the community. They are entirely separate considerations which are only weighed against each other on the overall assessment of the application.
Minister’s submissions
Aspects of the Minister’s submissions on this ground were difficult to follow. For example, the Minister submitted that the Tribunal was required to determine what weight to attribute to relevant considerations. However, in support of that submission, the Minister cited the following passage from the judgment of the Full Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28]:
…compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction.
The above passage does not support the Minister’s submission. It cautions against an approach that purports to assign relative weight to considerations in some sort of pseudo-arithmetical calculus, and emphasises that a decision-maker must engage in an overall assessment of competing considerations.
However, in the course of oral argument, it became clear that the Minister primarily advanced three submissions.
First (and perhaps foremost), the Minister submitted that the Tribunal’s reasons at [133] should not be understood as a conclusion that the burden of detention upon the applicant was lessened because he posed a risk to the Australian community. Implicitly, by that submission, the Minister acknowledged that any such reasoning would be legally erroneous. The effect of such reasoning would be to justify ongoing detention of the applicant as a means of reducing the risk to the community of the applicant re-offending. The reasoning would be that the community is better served by the applicant remaining in detention because of the risk of re-offending – a form of preventative incarceration. The Minister implicitly acknowledged that that is not the purpose of detention under the Act and is not a legitimate consideration.
Second, the Minister submitted that the Tribunal’s reasons at [133] should be understood as the Tribunal attributing relative weight to two considerations: the burden of detention upon the applicant and the risk to the Australian community if the cancellation of his visa was revoked. The Minister argued that, when deciding what weight to give to different considerations, the considerations are not considered in isolation – there must be some sort of “common yardstick” or “some sort of overall scale or gravity” that the Tribunal is looking at. The Minister submitted that, at [133], the Tribunal’s attribution of little weight to the effects of ongoing detention is the Tribunal’s explanation of the relative weight the Tribunal was giving to that consideration in comparison to the risk to the community.
Third, the Minister submitted that, even if Direction 99 required the Tribunal to weigh considerations against each other as part of an overall assessment, any premature weighing of two considerations could not constitute a material error. There is not a realistic possibility, as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined, that the Tribunal could have engaged in some different thought process and weighed considerations differently had it reserved that process until the conclusory stage of its reasoning.
Consideration
I accept the applicant’s characterisation of the Tribunal’s reasons at [130]-[133]. The unmistakable reasoning process of the Tribunal is that, if revocation is refused:
(a)the applicant may have claims for protection and therefore may make an application for a protection visa (at [130] and [131]);
(b)if the applicant does so, he will face an extended period in detention (at [131]);
(c)the applicant’s likely ongoing detention would impact adversely on his mental health (at [132]);
(d)however, the Tribunal has found that, if the applicant’s visa is restored (and, implicitly, he is released from detention), there is a real risk the Australian community will be harmed (at [133]); and
(a)in the circumstances, the Tribunal gives the fact that the applicant will spend more time in detention little weight.
A plain reading of the Tribunal’s reasons at [130]-[133] indicates that the Tribunal considered that the weight to be given to the applicant’s ongoing detention was reduced because of the risk that the applicant poses to the community if he’s released from detention.
I reject the Minister’s two alternative characterisations of the Tribunal’s reasons. Nothing in the language of the Tribunal’s reasons suggests that the Tribunal was engaging in some exercise of comparing the relative weight to be given to two different considerations. The Minister’s characterisation begs the question of why the Tribunal would engage in an exercise of comparing those two considerations in isolation of all other considerations. Likewise, I do not accept that the Tribunal’s reasons involved some intermediate weighing of different considerations. The Tribunal’s reasons are not to that effect.
The Tribunal’s reasoning for reducing the weight to be attributed to ongoing detention was legally erroneous. The Tribunal’s reasoning is based on a misunderstanding of the lawful purposes of immigration detention. In Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, French CJ, Hayne, Crennan, Kiefel and Keane JJ stated (at [26]) that immigration detention can only be for one of three purposes: the purpose of removal from Australia; the purpose of receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or the purpose of determining whether to permit a valid application for a visa. The protection of the Australian community from the risk of the applicant re-offending is not a lawful purpose of immigration detention.

It is unnecessary to address the Minister’s submission that, any premature weighing of considerations by the Tribunal could not constitute a material error and would therefore not constitute jurisdiction error. That submission was premised on the error being characterised as the “premature” weighing of considerations. In my view, the Tribunal’s error was not the premature (or intermediate) weighing of considerations; it was reducing the weight to be attributed to ongoing detention on a legally erroneous basis. The Minister did not submit that such an error would be immaterial.
It follows that ground 5 should be upheld.
Conclusion
In conclusion, I uphold each of grounds 2, 3 and 5 advanced by the applicant. A writ of certiorari quashing the decision of the Tribunal, and a writ of mandamus requiring the Tribunal to re-determine the matter in accordance with law, will be issued. I will also order costs in favour of the applicant.
I also express the Court’s gratitude to counsel for the applicant who represented the applicant pro bono.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.
Associate:
Dated: 7 February 2025

Review of:	YNPX v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 627
File number(s):	VID 422 of 2024
Judgment of:	O'BRYAN J
Date of judgment:	7 February 2025
Catchwords:	MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming the decision of the Minister’s delegate refusing to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal did not err in its consideration of the strength, nature and duration of the applicant’s ties to Australia – where Tribunal failed to address and/or meaningfully engage with applicant’s claims regarding risk of harm upon return to South Sudan – where Tribunal failed to consider applicant’s argument regarding risk of relapse of alcohol addiction upon return to South Sudan – where Tribunal had regard to an irrelevant consideration in determining the impact of detention on the applicant – application allowed
Legislation:	Constitution s 75(v) Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sched 16 ss 10, 25 Migration Act 1958 (Cth) ss 476A(1)(b), 476A(2), 499(1), 500(1)(ba), 501(3A), 501(6)(a), 501(7)(c), 501(7)(d), 501CA(4)
Cases cited:	Abebe v The Commonwealth (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Attorney-General (NSW) v Quin (1990) 170 CLR 1 CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 GBV18 v Minister for Home Affairs (2020) 274 FCR 202 Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 WCGD v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 180 ALD 355 Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	131
Date of hearing:	2 October 2024
Counsel for the Applicant:	M Kenneally, J Murphy and C Lees (appearing pro bono)
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the First Respondent:	K McInnes
Solicitor for the First Respondent:	Australian Government Solicitor

ORDER MADE BY:	O'BRYAN J
DATE OF ORDER:	7 FEBRUARY 2025