Da Costa Junior v Minister for Immigration and Multicultural Affairs [2025] FCA 1423

Direction No 110 and the applicant's contentions before the Tribunal

1. The Tribunal's statement of reasons for affirming the delegate's decision followed the framework of Direction No 110 of the Minister. Subsection 499(2A) of the Migration Act required the Tribunal to comply with the Direction. Direction No 110 distinguished between primary considerations and other considerations. The primary considerations included the protection of the Australian community, the strength, nature and duration of ties to Australia, the best interests of minor children in Australia, and the expectations of the Australian community. Other considerations included the legal consequences of the decision and the extent of impediments if removed. Specifically, the Direction provided in relation to legal consequences -

(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;

9.1. Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

...

1. The Direction provided in paragraph 7(2) that the primary consideration of the protection of the Australian community was generally to be given greater weight than the other considerations, and that otherwise primary considerations should generally be given greater weight than other considerations.
2. The applicant was represented before the Tribunal by a solicitor. The applicant's statement of facts issues and contentions before the Tribunal addressed seriatim the primary considerations and the other considerations that were relevant to the applicant's circumstances. There was no suggestion that there were any issues concerning non-refoulement or other barriers to the removal of the applicant to Brazil, and there was no claim that pending removal of the applicant to Brazil as soon as reasonably practicable detention would be prolonged. The applicant advanced the following matters before the Tribunal in his statement of facts issues and contentions in relation to the legal consequences of the decision -

9.1 Legal consequences of the decision

1. If the Applicant's visa cancellation in [sic] not revoked he will be liable for removal from Australia as soon as reasonably practicable. He would be unable to re-enter Australia [where] his daughter and ex-partner and friends reside.
2. His ability to see his daughter will be dependent on [his former wife's] financial and practical ability to take [their daughter] to Brazil to visit the Applicant.
3. Currently, the Applicant communicates with his daughter via physical visits and phone/video calls, however phone and video is not a meaningful form of communication and interaction for young children. Telephone and video communication would not be a meaningful way of maintaining a father-daughter relationship.

1. These contentions were supported by a statement of the applicant that was before the Tribunal, particularly at [76] of the statement.
2. The Minister's statement of facts issues and contentions before the Tribunal addressed the legal consequences of the decision in the following terms -

Legal Consequences of the decision

1. There is no claim, and otherwise nothing on the material to suggest, that Australia's non-refoulement obligations are enlivened in respect of the Applicant.
2. The Respondent accepts that a consequence of the Tribunal affirming the decision under review is that the applicant will be detained upon completion of his sentence and will be liable to removal from Australia as soon as reasonably practicable. He will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act. These are the intended consequences of visa cancellation.
3. The Respondent submits that this consideration should weigh neutrally in this matter.

1. It was not in issue that the applicant did not pass the character test. The question before the Tribunal was whether there was another reason to set aside the delegate's non-revocation decision. In summary, the Tribunal held -

(a) the nature and seriousness of the applicant's offending was a very significant factor in relation to whether the Tribunal was satisfied that there was another reason to set aside the non-revocation decision;

(b) while the applicant's risk of reoffending and relapse into drug use were low, this was a case where the applicant's conduct and the harm that would be caused, if it were to be repeated, was so serious that any risk that it may be repeated was unacceptable, and therefore the protection of the Australian community was a factor that weighed very heavily against revocation of the cancellation decision;

(c) there was no history of family violence, and therefore this factor was neutral;

(d) the applicant's ties to Australia, which included his close relationship with his former wife and their Australian-born daughter and social links with friends and his former wife's family weighed in favour of revocation;

(e) the best interests of minor children, particularly the applicant's daughter whom he shares with his former wife, weighed very heavily in favour of revocation;

(f) the Australian community expected that the Australian government should cancel the applicant's visa, and this was a factor that weighed heavily against revocation;

(g) the legal consequences of the Tribunal's decision were to be given neutral weight;

(h) the applicant's expressed fears of harm if he were returned to Brazil were given limited weight; and

(i) impediments that the Tribunal accepted the applicant may face if removed from Australia to Brazil weighed in favour of revocation but had limited weight because the identified impediments were not so significant as to prevent the applicant from establishing himself and maintaining basic living standards in Brazil.

1. The Tribunal then engaged in an overall weighing and evaluation of the considerations. It held that the nature of the applicant's conduct and the harm that would be caused if it were repeated were so serious that even strong countervailing considerations, such as the best interests of his daughter, were insufficient to justify revoking the cancellation decision. The Tribunal took into account the primary consideration of the protection of the Australian community and held that in the applicant's case it outweighed the countervailing factors. The Tribunal concluded that it was not satisfied that there was another reason to revoke the cancellation decision.

1. The applicant seeks an order of the Court that the decision of the Tribunal be quashed on the ground of jurisdictional error, and that a writ of mandamus issue requiring the Tribunal to determine the applicant's application according to law. There is one ground of the application, which relates to the Tribunal's reasons for giving neutral weight to the legal consequences of its decision to affirm the decision under review.
2. In its statement of reasons under the heading, "Legal Consequences of Decision - 9.1 of Direction 110", the Tribunal stated -
   1. As a consequence of affirming the decision under review, the Applicant will be detained upon completion of his sentence and will be liable to be removed from Australia as soon as reasonably practicable. He will not be able to apply for another visa (except for a protection visa). The Applicant has raised no claim of non-refoulement obligations.
   2. These are the intended consequences of a visa cancellation and therefore this consideration weighs neutrally in this matter.
3. These passages took their place in the Tribunal's reasons after the Tribunal had addressed all the primary considerations. As the summary of the Tribunal's decision at [10] above shows, some of the primary considerations favoured revocation, while others did not. All the primary considerations concerned the consequences of cancellation of the applicant's visa on the assumption that the decision to cancel would not be revoked.
4. The applicant's ground of review in this application is directed to the Tribunal's statement that the legal consequences of the decision had neutral weight -
   1. The Tribunal made an error of the nature identified in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273. Specifically, the Tribunal's conclusion that the legal consequences of the decision "weighs neutrally" was:
      1. legally unreasonable, irrational or illogical;
      2. the product of a misconstruction or misapplication of s 501CA(4) of the Act or para 9.1 of Direction 110.

Particulars

a) 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.

1. In support of this ground the applicant submitted that for the Tribunal to give neutral weight to the legal consequences that were identified on the basis that they were the intended consequences of the decision was a "clear error" of the type identified by Rangiah J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 (Singh), which was cited in the ground of review.
2. The applicant submitted that for the Tribunal to conclude that the legal consequences of affirming the decision under review were the intended consequences of cancellation addressed an irrelevant matter and involved a misconstruction of s 501CA(4). The applicant relied on Singh as establishing that s 501CA(4) does not permit the legal consequences to be evaluated simply on the basis that they were what the legislation intended. It was submitted that s 501CA(4) required that there be a balancing of the applicant's interests against the interests of the community in addressing the legal consequences. It was submitted that an evaluation of the legal consequences of cancellation will usually weigh in favour of revocation. The applicant submitted that it was therefore illogical for the Tribunal to give neutral weight to the legal consequences on the basis that they are what the legislation intended.

1. Because of the centrality of Singh to the applicant's submissions, I will identify the issues that Singh decided. Like the present case, Singh also concerned a review by a Tribunal of a decision not to revoke the cancellation of a visa. In Singh, the Tribunal was required to comply with Direction No 99 given by the Minister, which was relevantly in similar terms to Direction No 110, and required the Tribunal to consider the legal consequences of the decision. The Tribunal's reasoning in relation to the legal consequences of its decision are set out in the Court's reasons in Singh at [16]. In summary, the Tribunal in Singh concluded -

(a) the applicant would continue to be detained pending his removal;

(b) it remained open to the applicant to apply for a protection visa;

(c) to the extent that the applicant raised non-refoulement obligations, including a fear of his cousin whom Mr Singh claimed had criminal links in India, the Tribunal deferred consideration of that issue until such time as the applicant applied for a protection visa;

(d) otherwise, the applicant had no other visa options available to him and that he would be deported and permanently excluded from Australia, which were the inevitable legal consequences intended by Parliament; and

(e) accordingly, the Tribunal gave the legal consequences of its decision neutral weight.

1. In Singh, the Court held that the Tribunal's decision was attended with four jurisdictional errors.
2. The first error was that the Tribunal's approach of attributing neutral or no weight to the legal consequences of a decision not to revoke the cancellation of the applicant's visa reflected a misconstruction of the Act. That was because the Tribunal's statement that "they are the consequences intended by the Parliament" was, in such absolute terms, inaccurate: see [34]. It was held that the Tribunal's reasoning attributed to Parliament an intention or preference for the making of a decision adverse to an applicant such that those consequences would ensue, when no such intention was discernible from s 501CA(4) of the Act.
3. The second error in Singh was that the Tribunal failed to direct its attention to the "direct and immediate consequences" of the adverse decision: see Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ). Instead of identifying the immediate statutory consequences of detention, removal from Australia, and preclusion from returning, the Tribunal entertained the possibility that the applicant might make an application for a protection visa, as a result of which he might not be removed or excluded from Australia: see [38]-[39].
4. The third error was that by deferring the entirety of Mr Singh's claim that Australia owed non-refoulement obligations in respect of him, in combination with the finding that neutral or no weight should be given to the legal consequences of the decision, the Tribunal had treated what was only a possibility that the applicant would succeed in obtaining a protection visa as a certainty. The Court held at [41] that the Tribunal's reasoning in this regard lacked an evident and intelligible foundation, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ). Counsel for the applicant clarified that he did not rely on this aspect of Singh as being applicable to the present case.
5. The fourth error was that while the Tribunal had initially identified an inevitable legal consequence of a non-revocation decision as being that the applicant would remain in immigration detention, it did not refer to that factor again, and it was not apparent why the Tribunal decided that no weight should be given to that consequence. It was held that the Tribunal could not logically or reasonably have concluded that the continuing detention of the applicant did not weigh to at least some extent in favour of revocation: see [42].

Consideration of the Tribunal's reasons in the present case

1. I will commence by addressing the Tribunal's reasons for its decision before turning to the applicant's reliance on Singh.
2. There were two legal consequences of the Tribunal's decision that it identified at [54] of its reasons. Those consequences were: (1) that the applicant would be detained upon completion of his sentence and would be liable to be removed from Australia as soon as reasonably practicable; and (2) that the applicant would not be able to apply for another visa (except for a protection visa). For reasons that I will explain, the Tribunal considered the combination of these consequences and placed significant weight upon them as factors that went in different directions. Some consequences of the removal of the applicant from Australia as soon as reasonably practicable favoured revocation of the cancellation decision for reasons that the Tribunal identified. However, other consequences of the removal of the applicant from Australia favoured affirming the decision under review, because it was by the legal consequence of removal of the applicant from Australia that the primary considerations of the protection and the expectations of the Australian community would be met.
3. The applicant's contentions before the Tribunal that are referred to at [7] above are important. That is because in determining whether the Tribunal is satisfied that there is "another reason" for revoking a cancellation decision, the Tribunal undertakes the assessment by reference to the case made by the former visa holder by his or her representations: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (Plaintiff M1) at [22] (Kiefel CJ, Keane, Gordon and Steward JJ). Further, the applicant's contentions necessarily shaped the Tribunal's review, including its consideration of the matters which were the subject of Direction 110: see generally, Hong v Minister for Immigration & Border Protection [2019] FCAFC 55; 269 FCR 47 at [65]-[66] (Bromwich and Wheelahan JJ); BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 206 at [17] (Logan J, Snaden J and Hespe J agreeing).
4. The applicant's contentions before the Tribunal demonstrate that the relevant legal consequences for the applicant of the Tribunal's decision to which Direction No 110 referred did not exist in a vacuum. They had a human dimension that was the subject of the applicant's contentions. The contentions gave practical substance to the consequences of the applicant's removal. The Tribunal was required to read, identify, understand and evaluate, and bring its mind to bear on those contentions, from which it "might sift them, attributing whatever weight or persuasive quality is thought appropriate": Plaintiff M1 at [24]. The weight to be afforded to the representations made by the contentions was a matter for the Tribunal within the bounds of rationality and reasonableness: Plaintiff M1 at [25].
5. The Tribunal addressed the practical substance of the legal consequences of the applicant's removal from Australia throughout its reasons. The direct legal consequence of cancellation of the applicant's visa was that he would be removed from Australia as soon as reasonably practicable. Removal was an assumption that underlay the Tribunal's conclusions that the protection of the Australian community and the expectations of the Australian community favoured cancellation of the applicant's visa. On the other hand, the Tribunal also took account of the legal consequence of removal of the applicant and the applicant's inability to return to Australia as factors that weighed in favour of revocation. The strength, nature and duration of the applicant's ties to Australia, which included the impact on his daughter and ex-wife and the social links that he had developed, were held to favour revocation. In this regard, the effect of the applicant's removal from Australia on his ability to communicate with his daughter was held to favour revocation. The Tribunal referred to the applicant being limited to communication with his daughter by telephone, or video, and that physical contact was limited to his daughter's capacity to visit Brazil. The Tribunal held that these consequences affected the best interests of the applicant's daughter as a minor child. It concluded that they weighed very heavily in favour of revocation of the cancellation decision. The following extract from the Tribunal's reasons at [47] directly addressed the main contentions which the applicant advanced in relation to the legal consequences of the Tribunal's decision -

If the Applicant were returned to Brazil and separated from his daughter, it would have a devastating impact on her because their relationship would not be able to develop as it would if he were physically present with her in Melbourne. Their relationship would be limited to contact by phone which is difficult due to the time difference and because the daughter does not like talking on the phone. I accept the Applicant's submission that telephone and video communication would not be a meaningful way of maintaining a father-daughter relationship. Any physical contact would be limited to when the daughter could go to Brazil which would not be often, perhaps once every few years depending on the ex-wife's ability to finance the expensive overseas trip. The daughter will soon be a teenager and separation from her father would have a very negative impact on her during those critical years. It is in the best interests of the daughter for the cancellation decision to be revoked so that upon his release from prison the Applicant can resume his parental role with his daughter in Melbourne. This weighs very heavily in favour of revocation of the cancellation decision.

1. Separately, and as the summary of the Tribunal's reasons at [10] above identifies, the Tribunal considered other practical consequences of the removal of the applicant, including his claimed fears of harm and impediments if he returned to Brazil.
2. The applicant's claim that the Tribunal's conclusion that the legal consequences of the decision "weighs neutrally" was legally unreasonable, irrational, or illogical faces a high hurdle. In Plaintiff M87/2023 v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCASJ 42; 99 ALJR 387 at [27], Steward J captured the relevant principles in the following terms -

The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not - in any way - make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

1. The focus of the applicant's contentions before the Tribunal was upon the practical implications of the legal consequences of the cancellation of his visa. The Tribunal's reasons addressed and weighed the consequences of the applicant's removal from Australia to Brazil in the way that they had been shaped by the applicant's circumstances that were the subject of his statement of facts issues and contentions. The Tribunal was not required to address the same topic repetitiously, because whether the Tribunal has considered a matter that it is required to consider is to be inferred from the reasons as a whole: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97; 285 FCR 1 at [40]-[41] (Collier, Markovic and Anastassiou JJ), approving RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] (Anderson J).
2. Paragraph 9(1) of Direction 110 required the Tribunal to take into account the legal consequences of the decision, "where relevant". When the Tribunal came to address discretely the legal consequences of its decision at [54]-[55] it had already addressed in a substantive way the practical implications of those consequences which, as I have mentioned, pointed in different directions in the weighing calculus. What was left were legal consequences only in a residual or abstract sense because the Tribunal stated that the applicant had raised no claim of non-refoulement obligations, and because the Tribunal had otherwise addressed the legal consequences in the way in which the applicant had relied upon them in his statement of facts issues and contentions. No separate consideration of the applicant's detention pending removal was necessary, because on the material advanced by the applicant in support of revocation there was no suggestion of a protection finding or any other matter that would delay removal, and therefore a period of detention was no more than a collateral consequence of the decision, just as the physical act of removal itself was a collateral consequence. This explains why the Tribunal treated the legal consequences as being no more than what the Act intended and why they were given neutral weight. They had no independent weight beyond the weight that the Tribunal had given to the significant practical implications of the legal consequences of its decision that it had already addressed.
3. For these reasons, taking the Tribunal's reasons as a whole, I do not consider that in addressing the legal consequences of its decision the Tribunal failed to comply with Direction No 110, or applied the Direction in a way that was inconsistent with its decision-making function under s 501CA(4), or otherwise gave reasons that were legally unreasonable, irrational or illogical. There was no jurisdictional error by the Tribunal in giving the legal consequences of its decision, by themselves, neutral weight when the Tribunal gave the practical implications of the legal consequences both heavy weight in the applicant's favour, and overwhelming weight in favour of affirming the delegate's decision because the legal consequence was removal of the applicant from Australia.

The decision in Singh has no bearing on this application

1. Returning now to Singh, the Tribunal's reasons in this matter do not share any of the four errors which attended the review in Singh. Taking the four errors in turn -

(1) It cannot be said that the Tribunal in this case attributed to Parliament an intention or preference for the making of a decision adverse to the applicant such that it could be said that the Tribunal misapplied s 501CA(4) of the Act. That conclusion is not open when the Tribunal squarely considered the matters relied on by the applicant in his contentions as being the legal consequences of the decision in a way that was favourable to the applicant.

(2) For the same reasons, the second error identified in Singh was not made by the Tribunal in the present case.

(3) No error that resembles the third error identified in Singh falls for consideration in this case because there was no claim by the applicant before the Tribunal that Australia's non-refoulement obligations might be engaged, as the Tribunal noted at [54] of its reasons. And as I have mentioned, counsel for the applicant clarified that he did not rely on this aspect of Singh as being applicable to the present case

(4) No error of the type identified as the fourth error in Singh arises in this case. There were no circumstances that indicated that the applicant would not be removed from Australia as soon as reasonably practicable, which was the direct legal consequence provided for by s 198 of the Act. The Tribunal acted on the basis that the applicant would be removed as soon as reasonably practicable to Brazil and addressed the consequences of that course and the applicant's contentions in that regard.

1. A similar method of analysis was undertaken by Charlesworth J in Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 (Stoneley) where the applicant relied on claimed comparisons with Singh, but where her Honour gave attention to the reasons of the Tribunal under consideration in the case before her, noting at [36] the importance of reading the reasons of an administrative decision-maker fairly and as a whole, without an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In Stoneley, Charlesworth J held at [36] that nothing in Singh bound her Honour to find error in the reasons of the Tribunal that were before her.
2. Counsel for the applicant submitted that Stoneley was "plainly wrong" and that the reasons for judgment in Stoneley "employed specious and tendentious reasoning and an abandonment of judicial comity". The applicant further submitted that the reasons in Stoneley "did not refer to the 'plainly wrong' test and instead drew artificial and strained distinctions between the decision being challenged in Stoneley and that in Singh". The applicant's submissions compared the text of the impugned paragraph of the Tribunal's decision in Stoneley with the text of the impugned paragraph of the Tribunal's decision in Singh and the text of the impugned paragraph in the present case. In this regard, counsel for the applicant relied on a textual analysis of [55] of the Tribunal's reasons which was stripped from its context, and which did not have regard to the Tribunal's reasons when read fairly and as a whole against the context of the contentions that were advanced by the applicant before the Tribunal
3. The applicant's submissions directed to Stoneley and Singh that are summarised above are based upon a misconception as to the role of precedent and must be rejected. It is axiomatic that where outcomes of cases are fact-sensitive the proper use of precedent is to identify the legal principles to apply to the facts. While previous decisions on similar topics may illustrate the application of legal principle, one should not reason from a factual conclusion in one case to a factual conclusion in another: Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 1 WLR 1082 at 1089 (Lord Steyn), cited in Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 at [141] (Gummow J). Similar considerations apply to the question whether the reasons of a Tribunal disclose error where the terms of the reasons will usually vary from case to case and the Court must have regard to the issues that were before the Tribunal and to the need to read the reasons of an administrative Tribunal fairly, as a whole, and in the context of the issues that had to be considered. Databases of decided cases "should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application": Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 (Windeyer J); Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76; 305 FCR 246 at [74] (Wigney, Wheelahan and Feutrill JJ). See also: Fiddes v The King [2025] VSCA 141 at [169(3)] (Beach, Kennedy and Orr JJ); and at -[137] (Thawley, Wheelahan and Wheatley JJ). With respect, Charlesworth J made no error in to conclude at [36] that nothing in bound her Honour to reach the same conclusions in relation to the decision of the Tribunal that were the subject of the application in that case.
4. There is therefore no occasion to consider whether the decision in Stoneley was "plainly wrong", just as there was no occasion in Stoneley to consider whether Singh was "plainly wrong". Both decisions involved the application of well-established and understood principles to the reasons of different Tribunals in the different applications for review that were undertaken. Further, there is no reason in this case to refer any question to the Full Court, which was a submission made by counsel for the applicant citing Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 (Hicks) at [76]. In Hicks, French J referred to the desirability of stating a case to resolve a question of law or statutory construction where there was serious doubt raised by one judge about the correctness of the law as stated by another, in a matter of importance. There is no serious doubt about any question of law or statutory construction that arises in this case.

1. After the application was heard and while the Court's decision was reserved, the applicant drew the Court's attention to a decision of Banks-Smith J in Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411 (Doan), which was published on the same day as the hearing of this proceeding. The applicant submitted that Doan was directly relevant to the present case. Accordingly, I gave leave to the parties to file short supplementary written submissions on the effect of Doan on this Court's determination of the applicant's application.
2. Doan affords another illustration of the application of accepted principles to particular facts and provides no direct support for the applicant's case. Banks-Smith J considered that the legal consequences of a decision may be given neutral weight if they are otherwise taken into account in the decision-maker's evaluation of other considerations relevant to the review, as was the case in Stoneley which her Honour considered at [39] and [41]. However, Banks-Smith J held at [32] and [38] that in the case before her Honour the Tribunal fell into jurisdictional error because it assigned the legal consequences of the decision neutral weight and had failed to consider the consequences having regard to the particular circumstances of the applicant. For the reasons I have given above, the Tribunal in the present case did not err in this way.

1. The applicant has not established that the Tribunal's decision was affected by jurisdictional error. The application will be dismissed with costs.

I certify that the preceding 41 (forty-one) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.