ZTBL v Minister for Immigration and Citizenship
[2025] FCA 652
•19 June 2025
FEDERAL COURT OF AUSTRALIA
ZTBL v Minister for Immigration and Citizenship [2025] FCA 652
Review of: ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375 File number(s): VID 1110 of 2024 Judgment of: O’CALLAGHAN J Date of judgment: 19 June 2025 Catchwords: MIGRATION – application to quash the decision of the Administrative Appeals Tribunal (Tribunal) to affirm an earlier decision by the delegate of the Minister of Immigration and Citizenship (Minister) not to revoke the cancellation of the applicant’s permanent visa – where applicant was instead subject to a bridging visa – where Tribunal proceeded on the assumption that applicant’s bridging visa would include certain conditions imposed by the Minister pursuant to subclauses 070.612A(1)(a) and (d) of Schedule 2 and clauses 8620 and 8621 of Schedule 8 to the Migration Regulations 1994 (Cth) (Former Regulations) – where High Court subsequently found subclauses 070.612A(1)(a) and (d) of the Former Regulations to be invalid – where Tribunal’s decision was clear as to the marginal role that such conditions played in ultimate decision – held that Tribunal’s error was not jurisdictional as it was not in respect of the power under which the Tribunal was acting – held that Tribunal’s error was not material in any case due to the marginal weight attributed to the bridging visa conditions subsequently found to be invalid Legislation: Constitution Ch III
Migration Act 1958 (Cth) ss 499, 501(3A) and 501CA(4)
Migration Regulations 1994 (Cth) Sch 2 subcll 070.612A(1)(a) and (d), Sch 8 cll 8620 and 8621
Cases cited: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586
Al-Kateb v Godwin (2004) 219 CLR 562
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 (2021) 285 FCR 667
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
YBFZ v Minister for Immigration [2024] HCA 40; (2024) 99 ALJR 1
ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 101 Date of hearing: 21 May 2025 Counsel for the Applicant: N Poynder Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: A F Solomon-Bridge with L C Brown Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
VID 1110 of 2024 BETWEEN: ZTBL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.The application be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
REASONS FOR JUDGMENT
O’CALLAGHAN J:
INTRODUCTION
This is an application to quash the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), to affirm a decision by the delegate of the first respondent, the Minister of Immigration and Citizenship (the Minister), not to revoke the cancellation of the applicant’s permanent visa. The applicant also seeks to have this matter remitted to the Administrative Review Tribunal for reconsideration.
The applicant is a citizen of Iraq. He arrived in Australia in 1992 as a 14-year-old on a Subclass 202 (Class XB) Global Special Humanitarian visa. He is currently the subject of a “protection finding” by the Minister, such that the Australian government would be in breach of its non-refoulement obligations if it were to repatriate him to Iraq.
In 1994, he was granted a Class BF Transitional (Permanent) visa (permanent visa).
Between 1997 and 2020, the applicant committed over 350 criminal offences, which included property and dishonesty offences, repeated traffic offences, firearms and other weapons offences and two episodes of violent offending. He was sentenced to numerous periods of imprisonment.
On two occasions in the past decade, the applicant’s permanent visa was cancelled. Each cancellation decision was subsequently revoked in 2016 and 2019, respectively.
On 31 July 2020, the applicant was sentenced to 12 months imprisonment for a large number of offences. He was immediately released on parole for “time served”. Barely two months later, he committed a burglary, a serious assault and an armed robbery. Unsurprisingly, his parole was suspended, and he was returned to custody to serve the remainder of his 12-month sentence.
On 30 June 2021, a delegate of the Minister mandatorily cancelled the applicant’s permanent visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test and he was serving a full-time custodial sentence.
On 20 July 2021, the applicant requested the revocation of the visa cancellation. On 21 October 2022 a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision.
On 23 October 2022, the applicant lodged an application for review of the delegate’s non-revocation decision in the Tribunal. On 13 January 2023, the Tribunal affirmed the delegate’s non-revocation decision.
On 9 April 2024, the Tribunal’s decision was set aside by consent orders in this court, and the matter was remitted to the Tribunal for redetermination according to law.
On 5 August 2024, owing to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 (and the Minister’s protection finding precluding repatriation of the applicant to Iraq), the applicant was granted a subclass 070 Bridging R (Removal Pending) visa (bridging visa or BVR) with various conditions, and he was released from detention into the Australian community.
On 6 and 7 August 2024, a hearing took place before the Tribunal as reconstituted.
On 23 September 2024, the Tribunal affirmed the decision by the delegate of the Minister not to revoke the cancellation of the permanent visa (the Tribunal Decision or TD). See ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375.
On 17 October 2024, the applicant applied to this court for review of the Tribunal Decision.
Mr N Poynder of counsel appeared for the applicant at the hearing before me. He contended, in substance, that the Tribunal Decision was made on an incorrect understanding of the law and was therefore infected by a jurisdictional error which was material to the outcome of the decision.
Mr AF Solomon-Bridge of counsel appeared with Ms LC Brown of counsel for the Minister. He submitted that any error made by the Tribunal was not jurisdictional in nature, or alternatively that any jurisdictional error was immaterial to the outcome of the Tribunal Decision.
The second respondent filed a submitting notice on 30 October 2024.
As will be explained, the application is to be dismissed.
THE TRIBUNAL DECISION
The question before the Tribunal was whether the cancellation of the applicant’s permanent visa should be revoked under s 501CA(4) of the Act.
In considering this question, the Tribunal was required to apply Ministerial Direction No 110 (MD‑110 or the Direction), which had been made under s 499 of the Act. Section 6 of MD‑110 provided that “a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”.
Sections 8 and 9 relevantly provided as follows:
8. Primary considerations
In making a decision under section … 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
…
(3) the strength, nature and duration of ties to Australia;
…
(5) expectations of the Australian community.
…
9. Other considerations
(1) In making a decision under section … 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;
…
Section 7 of the Direction also relevantly stipulated as follows:
…
(2) The primary consideration at 8.1 … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
The Tribunal dealt with each of the relevant considerations, as follows.
Primary consideration 1: Protection of the Australian community
“Primary consideration 1” was comprised of two limbs: “[t]he nature and seriousness of the conduct” and “[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” (see MD-110, [8.1.1]–[8.1.2]).
The Tribunal considered each of these limbs separately.
First limb: Nature and seriousness of the applicant’s conduct to date
The Tribunal noted the following in relation to the nature and seriousness of the applicant’s conduct:
64. Between 1997 and 2021, the Applicant committed over 350 offences, which is frequent, persistent offending. It is reasonable to assume that his repeated offending involving property and dishonesty offences caused financial loss and inconvenience to multiple individuals and businesses in the community. His repeated traffic offences undermined the road safety system.
65. The Applicant’s offending includes two episodes of violent offending, including one where he threatened to stab the victim. The category that these offences come within, being violent offences, makes them very serious for the purposes of the Direction. In my view, the first is also very serious because of the level of violence and seriousness of the resulting injuries.
66. The Applicant has been caught in possession of a firearm, ammunition, and other types of weapons.
67. He has been sentenced to numerous periods of imprisonment. Imprisonment is generally the last resort in the hierarchy of sentencing options.
68. While fraud is not one of the categories of offence that is deemed to be serious or very serious, the scale of the credit card and loan fraud the Applicant committed in 1999 to 2001 makes that offending very serious.
69. There was not a trend of increasing seriousness in the Applicant’s overall offending. Rather, it fluctuated. The relatively recent introduction of violence into the Applicant’s criminal behaviour is concerning.
70. The only evidence of the impact of the Applicant’s offending on a victim is the evidence of the physical injuries he inflicted on his neighbour, which were numerous and severe.
71. On four separate occasions, in 2002, 2012, 2016 and 2018, it was brought to the Applicant’s attention, in writing, that criminal offending could lead to his visa being cancelled. On three of these he received a formal warning in writing.
Uncontroversially, the Tribunal concluded at [72] that “[t]he applicant’s criminal offending attracts heavy weight against revoking the cancellation of his visa”.
Second limb: Risk to the Australian community should the applicant commit further offences or engage in other serious conduct
The Tribunal began its consideration of the risk posed by the applicant to the Australian community by referring to the “varied” nature of his criminal history, the “broad range of harm that he could cause if he were to re-offend” (which could include “serious financial, physical and psychological harm”), his “long-standing drug dependence”, his untreated trauma, his “embarrassment and shame over his offending” and his efforts to become “clean headed”. See TD at [75]–[80].
The Tribunal also referred to an anger management course that the applicant had undertaken and some drug rehabilitation and other courses taken while in immigration detention, but expressed concern about his tendency to relapse, which “indicate[d] that the Applicant has not come far enough in his recovery”. See TD at [82]–[85].
Reference was made to the applicant’s plans to live with his parents (who live near his sister and her husband), exercise regularly and practice his faith. The Tribunal noted that the applicant’s family did not condone drug use or criminal activity, that his parents had previously thrown him out of home because of his drug use and that the applicant’s brother-in-law had arranged a job for the applicant in the restaurant he managed. See TD at [86]–[89].
The Tribunal expressed concern that “even with all the factors motivating him to stay drug-free and abide by the law, and all the supports he has in place, there is a moderate risk that he will relapse and not recover, and this will lead to crime, which could realistically include very violent crime”. See TD at [91].
The Tribunal then defined the question that arose before it, as follows:
92. The Direction contemplates that a decision to cancel a visa, or not to revoke the cancellation of a visa, will result in the non-citizen being removed from, or kept out of, the wider Australian community. … However, since NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”) there are some non-citizens who the government will allow to live in the wider Australian community on a BVR even if their substantive visa is cancelled. The Direction does not lend itself well to this situation.
93. The question arises, in a case like this: should the Tribunal allocate weight solely on the basis of the risk of harm posed by the Applicant in the wider community, or should the Tribunal allocate weight based on the difference between the risk of harm he poses under the [permanent] visa versus the BVR. It was contended on behalf of the Applicant that there is no difference between the risk of harm under each visa. The Respondent accepted that the Tribunal should consider this contention but rejects it on the facts. As considering it favours the Applicant, and the Respondent conceded that I should, that is what I have done.
(Citations omitted.)
Consistently with NZYQ, the Tribunal proceeded on the assumption that if it affirmed the decision not to revoke the cancellation of the applicant’s permanent visa, he would remain in the community on his bridging visa, subject to two conditions that had been imposed by the Minister under subclauses 070.612A(1)(a) and (d) of Schedule 2 and clauses 8620 and 8621 of Schedule 8 to the Migration Regulations 1994 (Cth) (the FormerRegulations).
Clause 070.612A(1) of the Former Regulations relevantly stated as follows:
(1) … each of the following conditions must be imposed by the Minister unless the Minister is satisfied that it is not reasonably necessary to impose that condition for the protection of any part of the Australian community (including because of any other conditions imposed by or under another provision of this Division):
(a) 8621;
…
(d) 8620.
Schedule 8 of the Former Regulations relevantly stated as follows:
8620 (1) The holder must, between 10 pm on one day and 6 am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
…
8621 (1) The holder must wear a monitoring device at all times.
…
The Tribunal summarised the combined effect of these clauses as “requir[ing] the Minister to consider whether it is reasonably necessary to impose conditions 8621 (monitoring device) and 8620 (curfew), among others, for the protection of any part of the Australian community”. See TD at [95].
The Tribunal then found as follows in relation to those two conditions:
97. It would be reasonable to infer that, as conditions 8620 and 8621 were imposed on the Applicant’s BVR, they were considered reasonably necessary for the protection of the Australian community. Failure to comply with either of these two conditions would have serious consequences for the Applicant, including conviction of a criminal offence under the Crimes Act 1914 (Cth) … which attracts a minimum sentence of 1 year imprisonment.
…
100. … [T]he nigh-time curfew adds a level of structure and consistency that the Applicant did not previously have in the wider community. The monitoring device will be a constant reminder to the Applicant that he is being monitored, which could prompt him to think twice if he is tempted to do the wrong thing. The curfew and monitoring device are potential supports for him. …
(Citations omitted.) (Emphasis added.)
The Tribunal concluded as follows with respect to primary consideration 1:
100. … Accordingly, I am satisfied that there is likely to be a lower risk of reoffending if the Applicant has a BVR than if he has his visa back, although I cannot speculate about what the differential is. On this basis, I allocate only marginal weight to this factor.
101. Overall, Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
102. I am concerned that where a non-citizen poses a high risk of harm to the Australian community, and has shown disregard for laws and regulations, then allocating weight based on a comparison of the risk of harm under one visa versus another could work against the central purpose of the legislation, Direction and, more specifically, Primary Consideration 1. That is because low or no weight would be allocated against the non-citizen with respect to risk of harm, which would increase their prospects of getting their visa back despite the danger they pose to the community. This works against the protection of the Australian community.
(Emphasis added.)
Primary consideration 3: Strength, nature and duration of ties to Australia
The Tribunal noted the following in relation to primary consideration 3:
116. The Applicant has lived in Australia for 31 years, having arrived when he was a 14-year-old child. He has worked and paid income tax, although there were some gaps in his employment. He loves Australia and considers Australia to be his home. He started offending around five years after arriving here, which I do not consider to be soon after arrival.
117. The Applicant’s parents, sister and brother-in-law, and uncle live in Australia. He also has some other uncles, and aunts and cousins in Australia. They are all Australian citizens.
118. The Applicant’s immediate family, in which I include his uncle, are clearly fed up with his drug use and offending behaviour, and they have expressed that he is on his last chance. However, I do not take this to mean that they do not love him. He has been offending for over 20 years and they are still in his life, expressing their love and concerns for him, wanting to help him. That tells me his familial bonds are very strong. …
119. I accept that the Applicant has friends in the community and that he has links to a Christian community.
120. The Applicant’s parents would like the Applicant to live with them and help them as a carer. His sister and her husband currently help them, but they do not live with them. The Applicant’s brother-in-law also suffers from leukemia, in fact, he stopped to give telephone evidence in this hearing while being driven to the hospital for chemotherapy by the Applicant’s sister. I accept that it is better for the entire family if the Applicant lives with his parents and helps them. He is currently doing that under the BVR. There is no suggestion that his ability to do that would change, although I acknowledge that there is inherent uncertainty with the BVR and the risk of a year in prison, away from his parents, if he were to break certain conditions. There would not be this uncertainty or risk if the Applicant got his visa back.
(Citations omitted.)
The Tribunal allocated “moderate to heavy weight in the Applicant’s favour” (i.e. in favour of revoking the permanent visa cancellation) under primary consideration 3. See TD at [121].
Primary consideration 5: Expectations of the Australian community
The Tribunal discussed primary consideration 5, relevantly as follows:
103. The Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia, and where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia. As I have noted, the Applicant will remain in Australia regardless of the decision. The Direction goes on to say that non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
…
105. The Applicant has a lengthy criminal history and numerous traffic infringements. He has committed violent offences which are, according to the Direction, of particular concern to the Australian community. His offending shows disregard for the laws that govern the community in which he wishes to live. While I accept that his traumatic childhood was an early contributor to his drug use, which led to his offending, he has had many opportunities to address it, and he did not make a serious effort to do that until relatively recently.
The Tribunal found that primary consideration 5 “weighs heavily against revocation of the cancellation of the Applicant’s visa”. See TD at [106].
Other consideration (a): Legal consequences of the decision
The Tribunal addressed “other consideration (a)” by comparing the legal consequences of a decision to revoke the cancellation of the applicant’s permanent visa against a decision not to revoke the cancellation, as follows:
109. Given the protection finding that has been made by the Minister, his removal to Iraq is not required or authorised. Any removal would have to be to a third country, and the Respondent conceded that there is no real prospect that it will be practicable to remove the Applicant in the reasonably foreseeable future. …
110. If the Tribunal does not revoke the cancellation of the Class BF Transitional (Permanent) visa, he would remain in the community subject to the conditions attached to the BVR. If the Tribunal revokes the visa cancellation, he will get his Class BF Transitional (Permanent) visa back and the BVR would cease. Either way, he would remain in the wider community.
111. The Applicant can live a relatively normal life on the BVR, and he has access to Centrelink and Medicare. However, the BVR conditions are more onerous than those attached to a Class BF Transitional (Permanent) visa. …
…
113. I accept that the Applicant will not always be able to hide the monitoring device and that it is likely that people who see it will think he is a criminal. I also accept that it is an indignity to have to continually report changes in one’s personal circumstances. There is some uncertainty about the BVRs in that it is not a permanent visa, it is not known how long the BVR will last, and it is not known what would happen to the Applicant if he were to engage in a non-criminal breach of a condition. I accept that uncertainty can be psychologically corrosive, and that the uncertainty is likely to impact those who care about the Applicant, as well as the Applicant. I further accept that the uncertainty will make it hard for the Applicant to make long term plans, such as entering a committed relationship.
(Citations omitted.)
The Tribunal found that this consideration “weighs moderately in favour of revocation of the mandatory cancellation”. See TD at [114].
The Tribunal’s conclusion
Weighing all of the considerations in accordance with MD-110, the Tribunal concluded (at [122]) that:
… Primary Considerations 1 and 5 weigh heavily against revocation of the cancellation of the visa. Primary Consideration 3 attracts moderate to heavy weigh[t] in favour of revocation, and Other Consideration (a) weighs moderately in favour of revocation. Therefore, there is more weight in favour of not revoking the cancellation of the Applicant’s visa. There is not another reason to revoke the cancellation of the Applicant’s visa.
Accordingly, the Tribunal affirmed the decision under review.
LEGISLATIVE DEVELOPMENTS
Just over a month after the Tribunal Decision was handed down, the High Court in YBFZ v Minister for Immigration [2024] HCA 40; (2024) 99 ALJR 1 (Gageler CJ, Gordon, Gleeson and Jagot JJ) found (at 23 [83]) that:
(a)the power vested in the executive government under subclauses 070.612A(1)(a) and (d) of the Former Regulations to impose the curfew and monitoring conditions on a non-citizen was prima facie punitive;
(b)there was no legitimate non-punitive purpose justifying the power; and
(c)the power infringed on the exclusively judicial power of the Commonwealth in Chapter III of the Constitution.
As a result, subclauses 070.612A(1)(a) and (d) of the Former Regulations were found to be invalid. See YBFZ at 24 [87].
Amendments to clause 070.612A have since been incorporated into the Migration Regulations 1994 (Cth). The clause now relevantly provides as follows:
(1) For each of conditions 8621, 8617, 8618 and 8620, the Minister must impose the condition if:
…
(b) despite the other conditions imposed on the visa by or under this subclause or another provision of this Division, the Minister is satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; and
(c) the Minister is satisfied on the balance of probabilities that the imposition of the condition (in addition to the other conditions imposed by or under this subclause or another provision of this Division) is:
(i) reasonably necessary; and
(ii) reasonably appropriate and adapted;
for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
THE APPLICANT’S SUBMISSIONS
The applicant submitted that:
(a)the Tribunal committed a “jurisdictional error” by:
(i)making its decision “on the basis of the law as it was then understood to be, whereas the law, as later proclaimed with retrospective effect in YBFZ, was different” (see written submissions at [29]) (the Invalid Bridging Visa Conditions issue); and
(ii)proceeding on an incorrect understanding of the state of satisfaction that the Minister was required to form before imposing the bridging visa conditions under clause 070.612A of the Former Regulations (the State of Satisfaction issue); and
(b)the Tribunal’s jurisdictional error was material (the Materiality issue).
Jurisdictional error
Invalid Bridging Visa Conditions
The applicant contended at [29] of his written submissions that “the Tribunal’s erroneous understanding of the law was that if the cancellation of the applicant’s [permanent] visa was not revoked, the applicant would remain in the community on a [bridging visa] with monitoring and curfew conditions imposed under subclause 070.612A(a) and (d)”.
This error was said to have informed the Tribunal’s conclusions in respect of primary consideration 1 (in particular, the risk to the Australian community should the applicant commit further offences) and other consideration (a) (namely, the legal consequences of the decision).
The applicant also submitted that “when a law is found to be invalid, it is found to have always been invalid”, and that, following YBFZ, the Tribunal’s earlier misapprehension that the relevant subclauses were valid amounted to a jurisdictional error.
The applicant contended at [29] that its case was “formulated in much the same way as the case for the appellant” in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586 (Murphy, Stewart and McEvoy JJ), where the Full Court allowed the appeal based on its acceptance of the following ground of appeal:
Subject to a grant of leave by this Honourable Full Court, the Respondent (Minister) made the jurisdictional error of failing to act on a correct understanding of the law.
Particulars
a. On 3 October 2023, the Minister set aside the Tribunal’s decision under s 501A(2) of the Act and refused the Appellant a protection visa;
b. The Minister, in addition to having express regard to indefinite detention in favour of the Appellant, had implied regard to indefinite detention as the basis for matters weighing against the Appellant, being the protection of the Australian community, family violence and the expectations of the community;
c. As the primary judge recognised, indefinite detention was therefore of critical or material importance to the Minister’s decision against the Appellant;
d. The Minister may commit a jurisdictional error by failing to act on a correct understanding of the law on a point of sufficient significance to the ultimate decision, even if the error of law is established by a subsequent judicial decision operating retrospectively: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 64; 285 FCR 667;
e. Such an error arose in the present case due to the Minister’s reliance on the lawfulness of the Appellant’s indefinite detention displaced by the later decision of the High Court in NZYQ v Minister for Immigration [2023] HCA 37; 97 ALJR 1005.
The Full Court in that case said (at 590 [12]) that this ground of appeal:
… asserts that the Minister made a jurisdictional error of law in making his decision on the basis of the law as it was then understood to be as proclaimed by the High Court of Australia in Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb) whereas the law, as later proclaimed with retrospective effect in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 (NZYQ), was different. It is said that the Minister’s erroneous understanding of the law was that if the appellant’s protection visa application was refused and the appellant was granted no other visa, the appellant would remain in immigration detention until he could be removed to another country, if and when that occurred.
It found (at 598 [56]) that “the Minister’s erroneous understanding of the law was outside the jurisdiction conferred on him by the statutory provision; it was a jurisdictional error. The appeal should therefore be allowed and the decision of the Minister set aside”.
The applicant submitted that the Tribunal in this case committed the same type of error that the Minister committed in AJN23, and that the same finding should therefore be made.
State of Satisfaction
The applicant also contended that the Tribunal’s understanding of the requirements in clause 070.612A departed from the proper interpretation of that clause.
As I have noted above, the Tribunal found at [95] that clause 070.612A “requires the Minister to consider whether it is reasonably necessary to impose conditions 8621 (monitoring device) and 8620 (curfew), among others, for the protection of any part of the Australian community”.
Quoting YBFZ at 23 [85], the applicant submitted that:
… the required state of satisfaction … “involves a positive state of mind about a negative stipulation (‘the Minister is satisfied that it is not reasonably necessary to impose that condition’) so that if the Minister cannot be so satisfied the conditions must be imposed, meaning that the provision resolves all doubt and uncertainty in favour of the imposition of the conditions”.
The applicant contended that the Tribunal’s alleged misunderstanding of the required state of satisfaction of the Minister when imposing the conditions fatally undermined its statutory task to review the decision of the Minister, and that this amounted to a jurisdictional error.
Materiality
The applicant further contended that the Tribunal’s jurisdictional error was “material to its decision” because it “imbued” or “infused” the Tribunal’s reasons, and was “centrally relevant” to the Tribunal’s findings in relation to both primary consideration 1 and other consideration (a).
Under the applicant’s counterfactual, if the Tribunal had acted on a correct understanding of the law — according to which a decision to affirm the Minister’s non-revocation of the cancellation of the applicant’s permanent visa would result in the applicant being subject to a bridging visa without monitoring or curfew conditions — the discrepancy between the two visas would have been somewhat reduced, such that the Tribunal might have instead decided to revoke the permanent visa cancellation.
The applicant also contended that the Tribunal’s error was not immaterial merely because it may have partially operated in the applicant’s favour (for example, in relation to other consideration (a)). In that regard, he relied on this passage from AJN23 at 597 [51]:
… A multifactorial evaluative decision such as that of the Minister cannot be analysed as a simple balancing exercise; “[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”: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] per Colvin, Stewart and Jackson JJ, and see also [27] and [34]-[35]. Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot “be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT at [16].
THE MINISTER’S SUBMISSIONS
The Minister submitted that:
(a)the Tribunal did not commit any error of law with respect to the Invalid Bridging Visa Conditions issue, and did not commit any error with respect to the State of Satisfaction issue;
(b)any error committed by the Tribunal was not jurisdictional in nature; and
(c)if there was a jurisdictional error, it was not material to the Tribunal Decision.
Error
Invalid Bridging Visa Conditions
Mr Solomon-Bridge conceded during his oral submissions that “[m]y learned friend is quite right to say that the law as pronounced by the High Court is – the legal fiction is, it’s the law as it’s always been”.
He also submitted that it is appropriate to characterise any error by the Tribunal (if there be one) as “a disappointed prediction of fact”, not law, as follows:
[N]ot only was this not a relevant area of law, but, in truth, it was just a disappointed prediction of fact. The tribunal was making a reasonable assessment, given the temporary quality of the bridging visa and its conditions, about what conditions might subsist for the foreseeable future … it turned out that those predictions did not fully come to pass, in part because of the intervention of the High Court. But we say that that really is nothing more than, in the context of the tribunal’s reasons, an error about a prediction of fact, which, a fortiori, wouldn’t be a relevant area of law.
State of Satisfaction
In relation to this issue, the Minister contended as follows:
21. The applicant complains of an additional misunderstanding concerning the construction of cl 070.612A. It is not apparent how the applicant alleges that the Tribunal ought to have construed that regulation in a certain way, when he simultaneously alleges that the Tribunal ought to have proceeded at all times as though it was invalid and inoperative.
22. The Tribunal acknowledged the relevant part of its reasoning “dr[e]w heavily” from submissions by the Minister to it and “which were not challenged by the [a]pplicant”, who was represented by solicitors and experienced counsel (now federal Judge).
23. In any event, the Tribunal’s introductory observation that cl 070.612A “requires the Minister to consider whether it is reasonably necessary to impose” the relevant visa conditions was simply an identification of the general subject matter to which the Minister was to turn his mind: it was not purporting to assay the precise effect of the clause, noting that it was not seized of any bridging visa decision-making.
(Citations omitted.)
Jurisdictional error
The Minister submitted that any error committed by the Tribunal in relation to the application of clause 070.612A was not a jurisdictional error because it did not relate to the power in s 501CA of the Act under which the Tribunal was acting. Putting the submission another way, the Tribunal’s exercise of power under s 501CA in respect of the permanent visa could be dissociated from any power exercised by the Minister under clause 070.612A in respect of the bridging visa, such that an error with respect to the latter could not infect the former.
As the Minister contended:
17. The applicant asserts here that the Tribunal misunderstood the law in not anticipating that the High Court was soon to declare invalid cl 070.612A … However, that was not the law under which the Tribunal acted; rather, the Tribunal was acting under s 501CA of the Migration Act and considering whether it should exercise powers to reinstate the applicant’s permanent visa.
…
20. In considering that the applicant’s bridging visa would be attended by visa condition 8620 (curfew) and 8621 (monitoring device), the Tribunal was doing no more than making a reasonable prediction about the continuation of that state of affairs. As it happens, that prediction turned out to be correct to a significant extent (see par 14 above), and notwithstanding YBFZ. The Tribunal was not purporting to construe the law under which it acted, by making that prediction.
(Emphasis in original.) (Citations omitted.)
During his oral submissions, Mr Solomon-Bridge elaborated as follows:
[T]here has to be some additional quality which connects the error to the actual exercise or powers that are being exercised by the repository.
…
I think the problem with the applicant’s ground is that he seeks to identify an error which has nothing to do with 501CA, subsection (4). That was the power being considered and exercised by the tribunal. Was there another reason to reinstate the permanent visa. Yes, as a matter of historical fact, it considered in the mix, as it were, what sort of bridging visa the applicant might enjoy should the tribunal decide matters one way or the other, but that was not – that is not to say that its divination or prediction about those conditions, even if it be an error, was an error that was as to the law under which the tribunal acted, which is 501CA(4).
Materiality
In the alternative, the Minister submitted that any jurisdictional error committed by the Tribunal was not material to its ultimate decision because:
(a)only “marginal weight” was given to the bridging visa conditions;
(b)the fact that the Tribunal was clear about the extent to which each consideration informed its ultimate conclusion means that it is possible for the court to identify whether the same decision would have been reached if a factual basis of one or more considerations (namely, the bridging visa conditions in the context of primary consideration 1 and other consideration (a)) had been removed; and
(c)the purported jurisdictional error operated in favour of the applicant in some instances.
In this regard, the Minister submitted:
29. To the extent that the Tribunal considered the burden of visa condition 8620 (curfew) and 8621 (monitoring device) on the applicant’s day to day life (T:[110]-[113]), that was a matter which was weighed “moderately in favour” of the applicant (T:[114]). Had the Tribunal correctly anticipated the High Court’s ruling in YBFZ, this aspect of the Tribunal’s reasoning could only have considered this matter to have weighed less in favour of the applicant and, like in YQLH v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 293 at [43], “could not possibly have caused the Tribunal to give greater weight in favour of revocation than what was ultimately decided”: see also AJN23 at [55] and compare at [51].
30. Otherwise, the Tribunal held that Primary Consideration 1 weighed heavily against revocation of the cancellation of the applicant’s permanent visa (T:[101]). The particular relevance of the visa condition 8620 (curfew) and 8621 (monitoring device) to that Primary Consideration were “allocate[d] only marginal weight” in that regard (T:[100]).
31. Ultimately, it is submitted that, in the particular circumstances of this case, there is no “improper speculation” in holding there to be no realistic possibility that the decision might have been different had the Tribunal proceeded on the basis that cl 070.612A was invalid: cf. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [36]; AJN23 at [51].
(Emphasis added.)
Mr Solomon-Bridge also said the following during his oral submissions:
[W]hat, in fact, the tribunal does is expose quite transparently how it has reasoned on each of the matters, and how each matter is then weighed together. So noting the hurdles which the Minister faces after LPDT when it comes to sustaining evaluative decisions, one of whose component parts might be affected by error, if ever there was a case which didn’t involve impermissible speculation, this would be it. Because the marginality, the peripheral nature of it, combined with the way in which the tribunal’s reasons are commendably transparent of the reasoning process, allows your Honour to make reasonable assessments about whether the decision could realistically have been different had the so-called error not been engaged in.
As to AJN23, the Minister submitted:
25. In that case, the appellant alleged that the Minister had made a jurisdictional error in making his decision on the basis that, if the appellant’s protection visa application was refused, and he was granted no other visa, the appellant would remain in indefinite detention – whereas, following NZYQ, that would not be the case.
26. The Full Court held that that misunderstanding “was of real significance to the ultimate decision” ([44]). For reasons submitted … in relation to materiality, it is submitted that the same observation could not be made here.
27. In any event, whether a non-citizen will remain in detention indefinitely as the proximate result of a decision is, it is submitted, a qualitatively different matter from a prediction whether inherently variable conditions of a bridging visa may or may not continue in relation to a particular person.
28. Should AJN23 apply here, the Minister makes the formal submission that it was wrongly decided. A Full Court of the High Court is scheduled to hear argument to that effect in June 2025 in the matter of Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs.
CONSIDERATION
Invalid Bridging Visa Conditions issue
As the parties agreed, when an impugned law is found to be invalid, that law is taken always to have been invalid, including at the time that any decision was made under that law.
Since subclauses 070.612A(a) and (d) of the Former Regulations were found to be invalid in YBFZ, they were invalid at the time of the Tribunal Decision.
It follows that the Tribunal (unwittingly) made an error — which informed its conclusions in respect of primary consideration 1 (in particular, the risk to the Australian community should the applicant commit further offences) and other consideration (a) (namely, the legal consequences of the decision) — by proceeding on the assumption that:
(a)subclauses 070.612A(a) and (d) were valid; and
(b)a decision to affirm the non-revocation of the permanent visa cancellation would result in the applicant remaining in the community on a bridging visa with monitoring and curfew conditions (see AJN23 at 594 [34]).
This is the case even though the Tribunal’s error was made through no fault of its own. As the Full Court said in AJN23 at 593 [30] in relation to the Minister’s understanding of the law based on Al-Kateb v Godwin (2004) 219 CLR 562 (i.e. that if the appellant’s visa was refused, he would be indefinitely detained until he was removed to another country):
… Although unknown, and unknowable, to the Minister at that time, that was an erroneous understanding of the law because (just over a month after the Minister’s decision) Al-Kateb was re-opened and overruled in NZYQ.
State of Satisfaction issue
The Minister submitted, and I agree, that the Tribunal’s formulation of the relevant requirement under clause 070.612A — namely, the requirement that the Minister “consider whether it is reasonably necessary to impose” the relevant visa conditions — was simply an “introductory observation” that identified “the general subject matter to which the Minister was to turn his mind: it was not purporting to assay the precise effect of the clause, noting that it was not seized of any bridging visa decision-making”.
Although the applicant was right to say that the clause required a positive state of mind about a negative stipulation (i.e. each condition had to be imposed unless the Minister was positively satisfied that it was not reasonably necessary to impose that condition), in my view the Tribunal did not misapprehend the nature of the test that was before the Minister for the purposes of imposing conditions on the bridging visa.
It follows that the Tribunal did not commit any error with respect to the State of Satisfaction issue.
The Tribunal’s error with respect to the Invalid Bridging Visa Conditions issue was not a jurisdictional error
It is well-established, and the Minister did not dispute, that an executive decision-maker must correctly understand the meaning of the law under which they act as at the time of their decision. See R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 (Latham CJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 136 [34] (Kiefel CJ, Gageler and Keane JJ); Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 35 [33] (Gageler and Keane JJ); and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 (2021) 285 FCR 667 at 681–682 [53] (Perram, Moshinsky and Thawley JJ).
Here, the Tribunal was seized with power under s 501CA of the Act to revoke the cancellation of the applicant’s permanent visa (which would reinstate the permanent visa) or not to revoke that cancellation (which would result in the applicant holding the bridging visa).
As part of its exercise of the s 501CA power, it was appropriate for the Tribunal to consider, and predict the relevance of, the various conditions that were anticipated to apply to the bridging visa (such as the requirement for the applicant to wear an ankle bracelet and comply with curfew conditions). Although the bridging visa (and its conditions) played a role in the Tribunal’s analysis as to whether it should reinstitute the permanent visa, the Tribunal was not acting under clause 070.612A. It follows that the Tribunal did not misunderstand the meaning of the law under which it acted as at the time of its decision.
In any event:
(a)the Tribunal attributed only “marginal” significance to the bridging visa conditions (being the subject matter of the error) in its broader revocation analysis under s 501CA (see TD at [100]); and
(b)those bridging visa conditions were always susceptible to change — either through the exercise of Ministerial discretion from time to time or through the ordinary expiry of such conditions after 12 months from the date of their imposition.
In those circumstances, there was no jurisdictional error.
Even if it were a jurisdictional error, it was not material, for reasons to which I now turn.
Any jurisdictional error with respect to the Invalid Bridging Visa Conditions issue was not material to the Tribunal Decision
The Minister submitted, and I accept, that even if the Tribunal’s error is found to have been a jurisdictional error, it was not material to the outcome of the Tribunal Decision.
As I have explained, in the context of its analysis of primary consideration 1, the Tribunal attributed only “marginal weight” to the role of the bridging visa conditions in lowering the risk posed by the applicant to the Australian community (compared to the risk that would otherwise exist if he had a permanent visa).
As the Tribunal stated at [100] of its reasons:
[T]he nigh-time curfew adds a level of structure and consistency that the Applicant did not previously have in the wider community. The monitoring device will be a constant reminder to the Applicant that he is being monitored, which could prompt him to think twice if he is tempted to do the wrong thing. The curfew and monitoring device are potential supports for him. Accordingly, I am satisfied that there is likely to be a lower risk of reoffending if the Applicant has a BVR than if he has his [permanent] visa back, although I cannot speculate about what the differential is. On this basis, I allocate only marginal weight to this factor.
(Emphasis added.)
Contrary to the applicant’s contentions, it does not follow from the fact that primary consideration 1 weighed heavily against revoking the cancellation of the applicant’s permanent visa (see TD at [101]) that the bridging visa conditions were “centrally relevant” to the decision-making process.
The Tribunal also correctly recognised at [102] that the exercise of comparing the risk posed to the Australian community under each type of visa could give the false impression that the applicant, under certain conditions, posed less of a risk under primary consideration 1 than he actually did. As the Tribunal noted, underestimating the danger posed by a non-citizen who has shown consistent disregard for the law works against primary consideration 1 and the protection of the Australian community.
I thus reject the contention that the bridging visa conditions were of “sufficient significance to the ultimate decision” or that the error in relation to them was “on a point of real significance to the ultimate decision”. Compare AJN23 at 595 [44]–[45]. Similarly, the purported jurisdictional error was not “fundamental” to the Tribunal Decision; it did not “underpin[]”, have a “close connection” to, or “play[] an important role” in the decision. Compare CBW20 at [57] and [59], cited in AJN23 at 595 [45].
The Tribunal was also clear about the extent to which each consideration informed its ultimate decision. Having assigned only “marginal weight” to the bridging visa conditions (which factored into its analyses of primary consideration 1 and other consideration (a)), it concluded as follows (see TD at [122]):
I am now required to weigh all the Considerations in accordance with the Direction. Primary Considerations 1 and 5 weigh heavily against revocation of the cancellation of the visa. Primary Consideration 3 attracts moderate to heavy weigh[t] in favour of revocation, and Other Consideration (a) weighs moderately in favour of revocation. Therefore, there is more weight in favour of not revoking the cancellation of the Applicant’s visa. There is not another reason to revoke the cancellation of the Applicant’s visa.
In my view, the Tribunal would have reached the same decision even if the error as to the bridging visa conditions had not been made.
The applicant’s submissions on materiality — which relied heavily on the passage from AJN23 at 597 [51] (set out at paragraph 64 above) — are inapposite in the present case, because the Tribunal in this case specified the precise weight to be given to each consideration and to the bridging visa conditions, undertook an overall balancing exercise and reached the conclusion that the permanent visa cancellation should not be revoked.
In that context, the Tribunal’s assignment of “marginal weight” to the bridging visa conditions emphatically shows that those conditions were not “an important underpinning of the decision in relation to several elements”. It follows that the Tribunal Decision cannot be said to have been “imbued” or “infused” with error. Compare AJN23 at 597 [49].
In the present case, there is no “improper speculation” in holding there to be no realistic possibility that the Tribunal Decision could have been different had it proceeded on the basis that subclauses 070.612A(1)(a) and (d) were invalid. Compare LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at 619 [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). In my view, it can be affirmatively concluded that the outcome would inevitably have been the same had the Tribunal’s error not been made. Compare LPDT at 616 [16].
It follows that if there was any jurisdictional error in the Tribunal Decision, it was not material.
DISPOSITION
The application should be dismissed, with costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan. Associate:
Dated: 19 June 2025
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