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

BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387

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

CKL21 v Minister for Home Affairs [2022] FCAFC 70

DOB18 v Minister for Home Affairs [2018] FCA 1523

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36

QXNS and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] FCA 1369

RNSQ v Minister for Immigration [2023] FCA 1111

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1273

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

I accept that Bugmy principles apply to each of you to a moderate degree to reduce your moral culpability > > Bugmy v The Queen [2013] HCA 37; 249 CLR 571: Childhood deprivation and disadvantage may impact on a person's moral culpability for the offence, depending on the extent of such disadvantage which may vary in degree and severity. The effects of such disadvantage are enduring. However, in considering the way in which a person's behaviour is impacted by Bugmy factors, it is also relevant to consider whether, conversely, the need for community protection is increased. > > A, your early childhood involved significant adversity. Your early life in a refugee camp, and the deprivation caused by growing up without a father are matters that have had an impact on your development. While your mother and your older siblings have been a good influence on you, I accept that you have faced many challenges and needed to make frequent adjustments due to changing circumstances faced by you and your family. > > Regarding prospects of rehabilitation, I accept that each of you have been very well behaved prisoners according to records produced to the court and that this is a favourable matter in assessing rehabilitation. B and A, I accept that each of you have very good prospects for rehabilitation, due to your limited criminal histories, your good employment records, your youth, and your obvious remorse for the offending.

1. The Tribunal notes that this consideration is a normative statement of the expectation of the Australian community that non-citizens who are not law abiding should not expect to hold a visa. And that the direction clearly articulates that acts of family violence, serious violence against women and minor children are identified as raising the kinds of character concerns that enliven the consideration, regardless of whether there is a measurable future risk of harm.
2. When considering this factor, the Tribunal notes the matter of LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107 where the Member observed:

In my view, ground 3 must be rejected. It was not disputed that the Tribunal was required to consider the mandatory legal consequences of cancellation of the appellant's visa (NBMZ at [10] (Allsop CJ and Katzmann J)). The Tribunal did do that, albeit in brief reasons. The Tribunal identified (T [100]) that if the appellant's visa were cancelled, he could become an unlawful non-citizen and thereafter detained under s 189 of the Act, and removed under s 198 of the Act. The Tribunal also identified, as a legal consequence, that the appellant would be subject to Public Interest Criterion 4013, which would prevent him from being granted a further visa for three years.

In oral submissions on this ground, the appellant observed that "[i]t does come down to how your Honour interprets these [T [100]-[102]] reasons". The Tribunal's reasons are to be read as a whole: see, eg, Guclukol v Minister for Home Affairs (2020) 279 FCR 611; [2020] FCAFC 148 at [56] (Katzmann, O'Callaghan and Derrington JJ); Minister for Home Affairs v NBCM (2019) 167 ALD 215; [2019] FCAFC 199 at [39] (Logan, Jagot and Thawley JJ). The Tribunal directly referred to and considered, in the appellant's favour, the personal hardships that would be caused to the appellant if his visa were cancelled (T [90]) and also directly referred (T [101]) to the hardships that would be caused by indefinite detention (note that issues concerning the High Court's decision in NZYQ v Minister for Immigration Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 3 were raised on the appeal). Reading the Tribunal's reasons as a whole shows that the Tribunal was aware of, and took into account, the "human consequences" of cancellation for the appellant (Hands at [3]). I do not accept that the Tribunal's reasons involved only the rote recitation of the legal consequences, divorced from the substantive, human effect of those consequences.

The appellant accepted, in oral submissions, that the fact that the consequences were intended by the legislature could be relevant to the weight attributed to them. That is the approach the Tribunal took in the balance of T [101], where it observed that the practical consequences were "intended legislative consequences" and, in the appellant's case, did not "outweigh the reasons to cancel the visa". Having identified the consequences, it was (as the appellant accepted) open to the Tribunal to attribute weight to those consequences on a basis that took into account that the legislature intended for those consequences to flow.

The Tribunal identified the consequences of a decision not to revoke the cancellation decision (namely, possible removal and exclusion of the applicant from Australia) and decided to give those consequences neutral (no) weight because, "they are the consequences intended by the Parliament". The statement in such absolute terms was inaccurate: such consequences are only intended by Parliament if the Tribunal decides not to revoke the cancellation decision. The Tribunal's reasoning attributes to Parliament an intention or preference for the making of a decision adverse to an applicant such that those consequences will ensue. Since the Tribunal is conferred with wide discretion to determine whether it is satisfied there is "another reason" whether the cancellation decision should be revoked, no such intention or preference is discernible from s 501CA(4) of the Act.

The Tribunal's approach of attributing neutral (no) weight to the legal consequences of a decision not to revoke the cancellation on the basis that Parliament intended such consequences reflects a misconstruction of s 501CA(4) of the Act.

I will proceed to consider the Tribunal's second reason for attributing neutral (no) weight to the legal consequences of a decision not to revoke the cancellation decision, namely that the applicant's removal and exclusion from Australia were merely possible, and not inevitable, consequences of such a decision.

A decision by the Tribunal not to revoke the cancellation decision would require that the applicant be removed from Australia as soon as reasonably practical (ss 196(6) and 198 of the Act) and he would be precluded from returning to Australia (s 503(1)). However, if he applied for a Protection visa, he would remain in immigration detention pending determination of his application (s 196(1)). And if a Protection visa were granted, he would not be removed and excluded from returning to Australia. In that sense, the Tribunal was correct to reason that the applicant's ultimate removal and exclusion from Australia were possible, rather than inevitable, legal consequences of its decision.

In Taulahi, the Full Court explained at [84] that the decision-maker's obligation is to take into account, "the direct and immediate statutorily prescribed consequences of the decision in contemplation". In my opinion, that description encompasses the statutory consequences that the applicant is liable to removal from Australia as soon as reasonably practicable and precluded from returning to Australia, as well as detention. The possibility that the applicant might be able to obtain a Protection visa and might not ultimately be removed and excluded from Australia was a matter for the Tribunal when considering the weight to be attributed to the liability of the applicant to removal and preclusion from Australia. However, the Tribunal was required to consider the legal consequence that the applicant was immediately made liable to detention, removal from Australia and preclusion from returning.

The Tribunal considered that no weight should be given to the potential for the applicant's ultimate removal and exclusion from Australia because they were possible but not certain consequences. However, the Tribunal failed to take into account the direct and immediate legal consequences of an adverse decision. The possibility that the applicant might make an application for a Protection visa and might not ultimately be removed or excluded from Australia, did not relieve the Tribunal from its obligation to take into account the immediate and direct statutory consequences. The Tribunal's failure to comply with that requirement amounted to a jurisdictional error.

In addition, the Tribunal's finding that no weight should be given to the statutory consequences of removal and exclusion from Australia because they were possible but not certain consequences was made in a context where the Tribunal had expressly declined to consider the merits of the applicant's claims that he should not be placed in an position where he could be removed to India because he would face harm there. In Plaintiff M1/2021, it was held at [30] that a decision-maker is entitled to defer consideration of whether the applicant was owed non-refoulement obligations on the basis that it was open to the applicant to apply for a Protection visa. The plurality observed at [39] that, "it nevertheless may be necessary...to take account of the alleged facts underpinning that claim where those facts are relied upon...in support of there being 'another reason'". The plurality made no suggestion that a decision-maker is relieved from their obligation to take into account the legal consequences of the decision under consideration where they decide to defer such consideration.

By taking the approach of deferring the entirety of the applicant's claim that he was owed non-refoulement obligations, the Tribunal disabled itself from assessing the probability of the potential legal consequences it had identified occurring. In those circumstances, the Tribunal's attribution of neutral weight, or no weight, to the possibility of the applicant being removed and excluded from Australia effectively treated as certain the mere possibility that the applicant would succeed in obtaining a Protection visa. In my respectful opinion, the Tribunal's approach, "lacks an evident and intelligible justification": cf Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76].

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

1. Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; [2016] 241 FCR 461, 'the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501'.
2. As the Tribunal has found BCQR does not pass the character test, it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of his visa should be revoked.
3. Counsel for BCQR did not dispute BCQR does not pass the character test acknowledging BCQR's offending was very grave, with consequences that were difficult, if not impossible, to comprehend or measure for the deceased victim and his surviving family. However contended that the Tribunal having heard all the evidence should set aside the decision under review and substitute a decision to revoke cancellation of his visa as there were numerous reasons that individually or cumulatively may satisfy the criterion of "another reason" in section 501CA(4)(b)(ii). Namely:
   • BCQR is a product of the Australian Community, having arrived in Australia at age four; residing here for over 19 years; his identity and values are derived exclusively from this community, and he has no ties to Sudan.
   • The Criminal Justice System has effectively functioned. The correctional system has successfully punished, deterred, and rehabilitated BCQR, as he has utilized his custody to address the causes of his offending.
   • Relevant Psychological Assessment. Expert evidence accepted by the sentencing court confirms BCQR possesses no anti-social personality traits and has successfully addressed the situational drivers of his past offending.
   • The Devastating Family Impact. Permanent removal would cause insurmountable distress to BCQR's interdependent family unit, particularly his mother and his Australian citizen fiancé.
   • Best Interests of Children. Revocation is in the best interests of BCQR's five Australian citizen nieces and nephews.
   • Insurmountable Impediments to Return. Removal to Sudan would sentence BCQR to destitution and severe health risks due to the civil war.
   • Indefinite "Limbo" and or Removal to Third Country. If not removed to Sudan, BCQR faces the indefinite "limbo" of a Bridging Visa R, involving punitive monitoring conditions, exclusion from essential services, and the constant threat of criminalisation. Furthermore, he faces the new and real risk of forced removal to a third country where he has no connections or support.
4. Counsel for the Minister submitted the Tribunal when making its determination needed to bear in mind the power of revocation was broad as stated by the High Court of Australia in Viane

(2023) 97 ALJR 1005

(2013) 249 CLR 332

(2021) 274 CLR 398

(2014) 225 FCR 424

(2020) 279 FCR 611