The Applicant contends that the Tribunal failed to consider these representations according to law, either by misunderstanding the representation, or by misunderstanding that its task included the power to determine questions of law (including constitutional law) when conducting merits review. The Applicant refers to the following passages in the Tribunal's reasons:
The Tribunal's reasons under the heading "Continuing punishment" contain the following (footnotes omitted, emphasis added):
... the statutory purpose of his detention was 'not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power'. The Applicant's claims that 'mandatory cancellation [of his visa] and past non-revocation decisions' have resulted in 'unlawful punishment' are matters for judicial review and not amenable to review by this Tribunal.
A non-revocation decision in the current matter would not constitute continuing punishment for the Applicant's criminal offending and no weight is placed on this consideration.
The Tribunal's findings on the legal consequences of the decision contain the following (emphasis added):
The Applicant's claims about past purported unlawful detention, or issues with accessing documents from the Department of Home Affairs, or the timing of when the Respondent should have decided his removal was not practicable, or the legality of the first BVR, or constitutionality of the second BVR, or his unresolved request to vary BVR conditions, are matters for judicial review and not by the Tribunal.
Obligation to consider representations: In Plaintiff M1/2021 v Minister for Home Affairs[2022] HCA 17; , a plurality of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) explained the content of the obligation to consider representations under s 501CA(4) as follows:
A decision-maker must "read, identify, understand and evaluate" the representations. The decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by the person: Plaintiff M1 at [24].
The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness, and will vary, among other things, according to the length, clarity and degree of relevance of the representations: Plaintiff M1 at [25].
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach: Plaintiff M1 at [26].
However, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error: Plaintiff M1 at [27].
Applying those principles here, I reject the Applicant's arguments that the Tribunal failed to consider these representations according to law.
Tribunal did not misunderstand representations: First, I do not accept that the Tribunal misunderstood the Applicant's various representations. The Tribunal cites in ART [204] the paragraph of the Applicant's reply submissions which clarified that the Applicant's argument was that the resulting effects of mandatory cancellation and past non-revocation would be punishment, not non-revocation in and of itself. In that context, the Tribunal describing the argument as being that "'mandatory cancellation [of his visa] and past non-revocation decisions' have resulted in 'unlawful punishment'" (emphasis added) can readily be interpreted as referring to the resulting effects of mandatory cancellation and past non-revocation.
Tribunal may decide that certain representations are not relevant to its task: Second, although the Tribunal was required to consider the Applicant's representations, taken as a whole, that does not mean that the Tribunal was required to determine all the matters raised by those representations. There is scope in appropriate cases for the Tribunal to consider a representation by deciding that it need not be determined.
Plaintiff M1 establishes that a decision-maker's required level of engagement may depend, among other things, on the relevance of that representation: Plaintiff M1 at [25]. In other words, a decision-maker's consideration of a claim may sometimes be satisfied by deciding that the claim need not be determined (noting that decision-makers are not obliged to make an actual finding of fact as an adjudication of even all material claims: Plaintiff M1 at [24]).
One example is that a decision-maker under s 501CA may legitimately decide to defer consideration of non-refoulement issues, if the non-citizen has a right to apply for a protection visa: Plaintiff M1 at [30]. In a similar vein, it is open to the Tribunal not to speculate about the likely duration of an applicant's immigration detention, if that duration depends on uncertain future events: see TCXMv Minister for Immigration, Citizenship and Multicultural Affairs[2024] FCA 451 at [44] (Wheelahan J), and the cases cited.
In TCXM, Wheelahan J held further that the legality of the continued immigration detention was "not an issue that was within the review jurisdiction that the [AAT] was exercising" (when making a decision under s 501CA of the Act): TCXM at [55]. That is, there was no obligation on the AAT to determine a representation that the legal consequences of a non-revocation decision would be unlawful detention: TCXM at [47].
This last point from TCXM is of particular relevance here: it runs directly counter to the Applicant's argument that the Tribunal was required to determine the issues of legal validity raised by the Applicant.
Tribunal may defer issues of validity: The Applicant's argument is also contrary to a long-standing practice that the Tribunal does not, as a matter of prudence, enter on issues of constitutional validity, at least those that do not go to jurisdiction.
The Tribunal can and should determine any argument that went to the extent of its authority to decide (or jurisdiction). Any administrative body, as part of its function, should form an opinion about the limits of its own authority: Re Adams and the Tax Agents Board[1976] AATA 1; (1976) 12 ALR 239 at 242 (Brennan J); Trajkovski v Telstra Corporation Ltd[1998] FCA 169; (1998) 81 FCR 459 at 468 (Tamberlin J). But that does not mean that an administrative body is required to determine any and all constitutional issues raised by the parties before it: it is at least a "counsel of prudence" for an administrative tribunal to "conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional": Re Adams at 245.
Indeed, there are remarks suggesting an even greater limit on the power of administrative bodies to form opinions about constitutional issues arising in the course of their functions, not going to jurisdiction. In Parliamentary Trusteeof Parliamentary Contribution Superannuation Fund v Federal Commissioner of Taxation[2013] FCAFC 127; (2013) 216 FCR 329, the Full Court stated (at [1]) "[i]t may be doubted whether the Commissioner [of Taxation] was constitutionally capable of proceeding other than on the basis that the legislation [which imposed a superannuation surcharge in respect of the pension of State parliamentarians] was valid in the absence of a direct judicial determination to the effect that it was not". And, as noted, Wheelahan J stated in TCXM at [55] that the validity of continued immigration detention was not within the AAT's review jurisdiction.
Accordingly, even assuming the Tribunal could form (non-binding) views about constitutional issues in the course of performing its merits review function, that is a far cry from saying that the Tribunal commits jurisdictional error unless it considers and determines any constitutional issue raised by an applicant about the validity of laws applicable to the Tribunal's decision.
The prudential approach exemplified in Re Adams is not confined to issues of constitutional validity. The Tribunal exercises similar caution before determining any representation that there has been unlawful conduct. That is because, even if the Tribunal can form an opinion about the matter, its opinion is not binding. By way of analogy, it is clear that the Tribunal can form an opinion that a previous purported decision contains jurisdictional error (following Minister for Immigration and Multicultural Affairs v Bhardwaj[2002] HCA 11; (2002) 209 CLR 597); however, the Tribunal exercises the power to re-open its decisions cautiously. Justice Downes (as President of the AAT) stated that the AAT should only treat its own previous decisions as invalid in the clearest cases, stating:
[2]
[I]t will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.
[3]
See Michael v Secretary, Department of Employment, Science and Training[2006] AATA 227; (2006) 90 ALD 457 at [17]; approved in Christiansen v Social Security Appeals Tribunal[2010] FCA 1146; (2010) 126 ALD 423 at [66] (Collier J); JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 at [78]-[79] (Kyrou J).
[4]
For these reasons, it was not a jurisdictional error for the Tribunal to decide that it would not determine the issues of lawfulness raised by the Applicant in this matter, but would leave those matters to be determined in judicial review proceedings (where a court could make a binding determination). Nothing in s 501CA of the Act, or the legislation establishing the Tribunal, suggests that the general principles in Re Adams would not apply. If anything, the fact that Tribunal decisions made under s 501CA must be made within 84 days of the person being notified of the decision under review suggests the contrary (see s 500(6L) of the Act).
In oral argument, the Applicant contended that, even if it were permissible for the Tribunal (as an administrative decision-maker) to decide that issues of legal invalidity should not be dealt with for prudential reasons, this is not what the Tribunal did. It is said the Tribunal's reasons are instead emphatic, particularly the statement in ART [204] that certain arguments "are matters for judicial review and not amenable to review by this Tribunal" (emphasis added). However, that statement in ART [204] is not dissimilar to the statements from Parliamentary Trustee and TCXM set out in [52] above. There was no error in the Tribunal reasoning this way.
Representations about past legality not relevant: There is a further reason why the Tribunal could choose not to determine the first three representations identified in [45](a) to (c) above. These representations concern past matters: past effects of immigration detention on mental health; past asserted invalid detention; and the invalidity of a superseded BVR. None of these past matters were relevant to the Tribunal's task.
I accept, as the Applicant submits, that the phrase "another reason" in s 501CA(4) is broad. But the relevance of a representation is determined by the scope of the statutory task under s 501CA, informed by the general objects of the Act (as explained in Direction 110). Here, the task of the Tribunal was to decide whether there was "another reason" to revoke the cancellation of the Applicant's visa, which (relevantly) required the Tribunal in this case to compare the position of the Applicant, going forward, as either the holder of his previous visa (if the cancellation was revoked), or the holder of the 2nd BVR (if the cancellation was not revoked). The matters identified in [45](a) to (c) above were not relevant to that task.
Here, there was no question of the Applicant returning to immigration detention: the Tribunal found that he would remain in the community, irrespective of the Tribunal's decision (ART [187]). Accordingly, this is not a case where a non-revocation decision could result in further immigration detention and potentially exacerbate a mental health condition. Further, the reference to the Applicant's mental health was put as an aspect of a submission as to why the Applicant had been subjected to "continuing punishment", which the Tribunal considered at ART [201]-[205].
The issue of whether or not the Applicant's previous detention was unlawful was not relevant to the choice, looking forward, of whether the Applicant should hold his previous visa or a BVR. Conversely, the availability of any redress for past unlawful detention is unaffected by whether the Applicant now holds a full visa or a BVR. More broadly, if the legality of future detention is not part of the ART's review function (as held in TCXM at [55]), then it must follow that the legality of past detention is not part of that function either.
Similarly, the invalidity of the 1st BVR is irrelevant to the question before the Tribunal. Its invalidity means that the Applicant could not be prosecuted for breaching any conditions of the invalid visa. But this historical issue does not bear on whether the Applicant should now hold a full visa or a BVR.
Conclusions on Ground 3: Accordingly, there is no error in the Tribunal deciding that it would not determine these claims, and that the legality of these matters would need to be determined by a court in judicial review proceedings. To be clear, the Tribunal did commit an error by not agreeing with the Applicant's representation that the conditions on the 2nd BVR were invalid. But that error was the consequent error of law that followed from treating the impugned conditions as valid (as explained in Ground 1), not a failure to consider that representation.
[5]
Ground 4: The Tribunal erred by purporting to "defer" consideration of the Applicant's fears of harm and the impediments he would face if returned to South Sudan
[6]
Ground 4 contends that the Tribunal erred by purporting to "defer" consideration of the Applicant's fears of harm and the impediments he would face if he were returned to South Sudan.
Submissions to the Tribunal; Tribunal's reasons (Ground 4): Ground 4 arises out of submissions made to the Tribunal about the legal consequences of a non-revocation decision and impediments on return, with the Applicant noting that a "protection finding" within the meaning of s 197C(3) of the Act has not been made in respect of the Applicant.
[7]
(a) The Applicant submitted that he faced a risk of refoulement because, in the absence of a finding under s 197C(3), there was a duty to remove him from Australia as soon as reasonably practicable under s 198(2B) of the Act, regardless of whether Australia owed non-refoulement obligations in respect of him. The Applicant submitted further that, even if the Tribunal decided to defer consideration of non-refoulement claims, it should consider the facts underlying these claims, as matters going either to the legal consequences of the decision, or as impediments that the Applicant would face if removed from Australia to South Sudan.
(b) The Applicant contends that the agreed position before the Tribunal (put by the Minister and not contested by the Applicant) was that the Applicant was a de jure citizen of South Sudan by virtue of his parents being born in South Sudan and them being ethnically Dinka. The Applicant claimed that he was de facto stateless, because he did not have national identity documents, and it was likely to be difficult to obtain those documents from South Sudan. The Tribunal had a 2018 report on statelessness and citizenship in East Africa which (the Applicant says) showed that the Applicant was not entitled to citizenship in Kenya, because its laws did not provide for citizenship by birth (but only by descent).
(c) Therefore, the Applicant contends, the parties in the Tribunal proceeded on the basis that South Sudan (not Kenya) was the relevant "home" country to assess the legal consequences and the extent of impediments if removed. The Applicant points out that, although the Minister's contentions in the Tribunal stated that the Applicant had been released from immigration detention following NZYQ because "there was not sufficient evidence to establish that he had a right of return to either Kenya (his country of birth) or South Sudan", the Minister's contentions also stated that the Applicant was liable to be returned to South Sudan if it became reasonably practicable to do so. The Applicant says that the Tribunal did not raise any question with the Applicant about whether South Sudan or Kenya was the correct country to use as the "home" country to assess legal consequences and impediments to return.
[8]
Tribunal's reasons (legal consequences and impediments): The Applicant refers to the following parts of the Tribunal's reasons on the legal consequences of its decision and impediments to return.
On the legal consequences of the decision, the Tribunal readily accepted that the situation in South Sudan "remains dire and volatile". The country information paints a grim picture of "persistent violence, political instability, corruption, poverty, and unmet humanitarian needs". Having never been to South Sudan, the Applicant would "clearly be ill-equipped to establish himself in such an environment, particularly given his status as a Western returnee with no sources of familial or other support" (ART [179]).
The Tribunal stated the dire situation in South Sudan is only relevant if that is the country of reference. The Tribunal stated (at ART [180]):
[9]
It is not possible on current facts to determine if this is South Sudan because of the Applicant's parentage, or Kenya where he was born. Moreover, the Applicant contends that he is stateless and has no documents to establish a right of return to either country.
[10]
The Tribunal decided "to defer assessment of the Applicant's statelessness and protection claims, because he is eligible to apply for a Protection Visa" (ART [186]). The Tribunal stated that, beyond finding that the Applicant will remain in the community irrespective of the Tribunal's decision, the course of future events remained uncertain. The Tribunal referred to the possibilities of an adverse decision being appealed, or the Applicant lodging a protection visa application, or seeking further variation of BVR conditions (ART [187]).
The Tribunal gave the legal consequences of its decision "slight weight" in favour of revocation (ART [191]).
[11]
On impediments to return, the Tribunal referred to the same issues about the situation in South Sudan and identifying the country of return (ART [197]-[198]). The Tribunal then stated that the Applicant has a BVR because it is not reasonably practicable to remove him. There was no evidence as to when this might change, which turns on factors such as the correct country of reference, whether he applies for a protection visa and so on (ART [199]). The Tribunal concluded:
The issue of impediments to removal does not currently arise in this matter, because the Applicant will remain in the community irrespective of the Tribunal's decision. There is also no persuasive basis to establish the correct 'home country' in which impediments may arise. The Tribunal is therefore not satisfied the Applicant is currently confronted by impediments within the meaning of this consideration, which carries neutral weight.
Applicant's arguments (Ground 4): The Applicant contends that the Tribunal's reasons set out in [62]-[63] above contain the following jurisdictional errors:
[12]
(1) First, the Applicant contends that the Tribunal was obliged to form a view about the Applicant's home country in order to evaluate the Applicant's representations about the legal consequences of the Tribunal's decision and impediments to return, citing PLQF at [11]. The Applicant contends that, without a "protection finding" within s 197C(3), the legal consequence of a non-revocation decision was that the Applicant was liable to removal to South Sudan as soon as it became reasonably practicable to do so, citing Singhv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] FCA 1273 at [38]. The Applicant contends that deferring whether he was stateless did not relieve the Tribunal of the obligation to take into account this immediate legal consequence or extent of impediments if he were removed to his home country, citing Singh at [40]. The Applicant emphasises that the purpose of the cancellation powers generally is to enable the removal of a person from the community (referring to XKTK v Minister for Immigration, Citizenship and Multicultural Affairs[2025] FCAFC 115 at [15], [17] (Wheelahan J)), and that enabling removal is the purpose of a BVR specifically.
(2) Second, the Applicant contends that it was illogical or irrational for the Tribunal to find that the country of reference cannot be reliably established on the present facts when (it is said):
(a) the clear evidence before the Tribunal was that he was entitled to citizenship in South Sudan, but not Kenya;
(b) the Minister's position was that an adverse decision meant that the Applicant was liable to be removed to South Sudan as soon as reasonably practicable; and
(c) both parties made representations about the extent of impediments in respect of South Sudan, not Kenya.
[13]
The Applicant says the Tribunal's approach here, in effect, treated as certain that the Applicant would not be removed to South Sudan (citing Singh at [41]), but that elsewhere the Tribunal accepted the Applicant's contention that he remains at some risk of refoulement (citing ART [185], [188]).
(3) Third, the Applicant contends that the Tribunal's deferral of this matter meant that it did not comply with para [9.2] of Direction 110, which required the Tribunal to consider impediments "if removed from Australia to their home country". The Applicant contends that, if removal is not presently likely, that only allows the Tribunal to moderate the weight to be given to this consideration, and does not excuse the Tribunal from not considering this factor at all.
(4) Fourth, the Applicant contends that the Tribunal denied the Applicant procedural fairness by failing to put him on notice, and give him an opportunity to make submissions on the correct country of reference. It is said that the Applicant is prejudiced because he only submitted country information about South Sudan, and only made submissions about the extent of impediments if removed to South Sudan.
[14]
Two general points: The Applicant's arguments above are largely answered by two general points made by the Tribunal in its reasoning on the legal consequences of its decision, and impediments to return.
No prospect of removal for foreseeable future: First, and fundamentally, the Tribunal found that there was no reasonably foreseeable prospect of the Applicant being removed from Australia, whether to South Sudan, Kenya or anywhere else: see ART [182] (re-detention or removal "are not current consequences of a non-revocation decision"). A pre-condition of the grant of a BVR is that the Minister was satisfied that it was not currently practicable to remove the Applicant from Australia in the reasonably foreseeable future (ART [9](f), [165]). The Tribunal stated there was no current evidence about the Applicant's removal from Australia becoming reasonably practicable for the foreseeable future (ART [185]).
As discussed below, the Tribunal's finding that there was no immediate prospect of removal meant that the identification of the "home country" to which he would be returned, and the impediments that would be faced there, did not arise.
Relevance of material not explained: Second, the Tribunal observed that the Applicant continued to rely on submissions made and materials filed in the 2022 hearing for the purposes of the 2024 hearing. However, there were changes in the Applicant's circumstances and inconsistencies between the 2022 and 2024 submissions, identified in ART [30]. Further, the Applicant continued to rely on country information filed in the 2022 proceeding, as well as 14 further documents filed in the 2024 proceeding (ART [31], [179]). The Tribunal observed that the relevance of much of this material was not referred to in the 2024 hearing, and some documents appeared to be of questionable relevance because they were quite dated and unlikely to reflect the situation in South Sudan, or unclear as to how they related to the Applicant's circumstances, as explained in ART [179](a)-(f).
These observations by the Tribunal are relevant, because implicit in at least the Applicant's first two arguments set out above is that the Tribunal was required to reach a final resolution on all the matters raised in his contentions. As already noted, the Tribunal was not required to speculate about the course of future uncertain events, dependent on matters such as whether the Applicant would apply for a protection visa: see [50] above. Further, the degree of consideration required by the Tribunal is affected by the way the case was run before it, particularly when (as here) the non-citizen is represented before the Tribunal: see Singh v Minister for Home Affairs[2019] FCAFC 3; (2019) 267 FCR 200 at [37](2)(b) (the Court).
No requirement to determine "home country": For these reasons, there was no obligation on the Tribunal to determine the Applicant's "home country", because the Tribunal found that the grant of the BVR meant that the Minister was satisfied that it was not currently practicable to remove the Applicant from Australia for the reasonably foreseeable future, and there was no evidence before it to suggest that the Applicant's removal from Australia would become reasonably practicable for the foreseeable future.
The Applicant contends, however, that he remained "liable" for removal, even if his removal was not reasonably foreseeable. The Applicant contends further that the purpose of a BVR is to enable the person to be removed. Therefore, it is said, the Tribunal could not rationally be satisfied that the Applicant's removal will never become practicable, even if it is not reasonably practicable for the foreseeable future.
No obligation to assess beyond the reasonably foreseeable future: In my view, however, there was no obligation on the Tribunal to assess beyond the reasonably foreseeable future. By analogy, in the refugee context, the Tribunal is required to assess an applicant's claims to have a well-founded fear of persecution on return to their home country by reference to the reasonably foreseeable future and not merely the immediate future or the present situation. The use of the concept of reasonably foreseeable future is to ensure that an assessment is made on the basis of probative material, not guesswork: CPE15 v Minister for Immigration and Border Protection[2017] FCA 591 at [59]- [60] (Mortimer J); AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47; (2019) 269 FCR 168 at [49] (Middleton and Mortimer JJ).
In addition, the Tribunal recognised that its decision was not the final step before removal. The Tribunal relied on two further factors: that the Applicant could make an application for a protection visa (a process that would allow "protection findings" to be made), and that public statements by the Australian Government indicated that it would not remove a person in breach of Australia's non-refoulement obligations: see, respectively, ART [186]-[187], [207]; [208]-[213].
PLQF and Singh do not affect the position: Neither PLQF at [11] nor Singh at [38] (relied on by the Applicant) require a contrary conclusion. The statement in PLQF at [11] that the Tribunal was "required to form a view" about whether the applicant (who claimed to be stateless) could be returned to Bhutan or Nepal was made in the context where the parties had agreed that the applicant could not be returned to either place, and this agreement was intended to relieve the Tribunal of the need to examine the issue further (see PLQF at [12]).
In Singh at [38], Rangiah J found that it was necessary for the Tribunal to take account of the fact that a non-revocation decision would render a person liable for removal from Australia, even if the person was entitled to apply for a protection visa. Justice Rangiah held further that the Tribunal still had to consider this possibility, even if non-refoulement issues were deferred to the protection visa stage, because otherwise the Tribunal would impermissibly be treating the grant of a protection visa as a certainty (Singh at [41]). By contrast, as just mentioned, the Tribunal found here that there was no foreseeable prospect of the Applicant being removed from Australia, whether or not the Applicant applied for a protection visa (on which the Tribunal did not speculate: see ART [182], [187]). That finding was open to the Tribunal; indeed, it is difficult to see what other finding could have been made. For the same reason, YNPX v Minister for Immigration and Multicultural Affairs[2025] FCA 49 at [85] (O'Bryan J) is distinguishable: his Honour was not dealing with a case where the Tribunal had found that removal of the person from Australia was not practicable for the reasonably foreseeable future.
Tribunal's reasoning not illogical or irrational: Second, the Tribunal's reasoning in this respect is not illogical or irrational. The premise of the Applicant's argument is that the Tribunal found that the Applicant remains at some risk of refoulement, referring to ART [185] and [188]. But the Tribunal's actual reasoning in ART [185] is as follows:
[15]
The Applicant's contention that he remains at some risk of refoulement, should his BVR cease under the Regulations, or he reoffends, is correct. But there is no current evidence about his removal from Australia becoming reasonably practicable for the foreseeable future ... (emphasis added)
[16]
That is, the Tribunal accepted that there was a risk of refoulement, if the Applicant's BVR ceased. But that possibility was remote, given the Tribunal's finding that there was no foreseeable prospect of the Applicant being removed from Australia. The Tribunal correctly stated that it was not required to speculate about the course of future events, which depended on matters such as whether the Applicant would choose to apply for a protection visa (ART [187]-[188]).
Tribunal did not breach Direction 110, para [9.2]: Third, the Tribunal's reasoning did not breach para [9.2] of Direction 110, which states that decision-makers "must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country". I accept the Minister's submission that the Tribunal need not take account of these impediments, if the Tribunal finds that removal from Australia is not reasonably practicable for the foreseeable future. Direction 110 states in para 6 that the decision-maker must take into account the considerations in sections 8 and 9, "where relevant to the decision". In the circumstances of this case, it was permissible for the Tribunal to reason that impediments to return "does not arise", and to give this consideration neutral weight (ART [200]).
No breach of procedural fairness: Finally, I do not accept that there was any breach of procedural fairness in the Tribunal not accepting the submission that the Applicant's home country was South Sudan, for two independent reasons.
Issue was identified in Minister's contentions: First, the issue was sufficiently identified in the Minister's contentions in the Tribunal, which submitted that there was not "sufficient evidence to establish that [the Applicant] had a right of return to either Kenya (his country of birth) or South Sudan", and that the Tribunal should defer consideration of non-refoulement issues. That submission is substantially to the same effect as the Tribunal's impugned finding at ART [180]. It is true (as the Applicant points out) that the Minister's contentions also stated elsewhere that the Applicant would be liable to be returned to South Sudan if removal became reasonably practicable. However, there is no contradiction between these submissions from the Minister: the Tribunal reached substantially the same conclusion as the latter submission in ART [185] (that the Applicant remains at some risk of refoulement, should his BVR cease). The latter submission can be understood as being put in the alternative, in the event that the Tribunal did not accept the Minister's first submission that it was not possible to establish whether the Applicant had a right of return.
Submissions on other countries of return could not realistically have affected outcome: In any event, any failure by the Tribunal not to put the Applicant on notice could not realistically have affected the outcome. I accept that, when the alleged error is a breach of procedural fairness, the Court should not treat the Tribunal's reasoning process as necessarily fixed for the purposes of the counterfactual analysis, even though the actual decision remains indispensable in defining the subject matter and scope of the counterfactual inquiry: Smith v Minister for Immigration, Citizenship and Multicultural Affairs[2025] FCAFC 78 at [26] (the Court), citing Minister for Home Affairs v BRO18[2024] FCAFC 27; (2024) 302 FCR 259 at [33] (the Court). At the same time, there can be situations where the Court can be confident that a breach of procedural fairness could not have affected the outcome: see, for example, BRL17 v Minister for Immigration and Citizenship[2025] FCA 1083 at [54] (Cheeseman J), where a failure to have regard to a post-interview submission was not material, because the Tribunal actively considered all the topics raised in that submission.
In this case, the Applicant says that he was denied the opportunity to put submissions on which was the correct country of return. However, the Tribunal found that the removal of the Applicant from Australia was not reasonably practicable for the foreseeable future, and assessed legal consequences and impediments on that basis. Further, the only potential country of return that received any consideration by the Tribunal was South Sudan (see ART [179], [197]), the country on which the Applicant had put submissions. In these circumstances, whatever submissions the Applicant made on the correct country of return, those submissions could not realistically have affected the outcome of the Tribunal's decision.
Conclusions on Ground 4: For these reasons, I reject Ground 4.
[17]
I would therefore accept Ground 1, but reject Grounds 3 and 4. The application is therefore allowed, and the Minister must pay the Applicant's costs.
[18]
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.
Parties
Applicant/Plaintiff:
DXJL
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FCA 1303