LMRD v Minister for Immigration and Citizenship [2025] FCA 1251

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

1. This proceeding, which involves an application under s 476A of the Migration Act 1958 (Cth), was scheduled for hearing on 14 October 2025. On 10 October 2025 I made orders, by consent, for the issue of: (1) a writ of certiorari directed to the second respondent Tribunal quashing its decision made on 14 May 2025; and (2) a writ of mandamus requiring the Tribunal to re‑determine the application that the applicant had made to it for review of the decision of a delegate of the first respondent Minister made on 1 August 2023.
2. On 19 September 2025, the Court received - in accordance with Practice Note Consent orders involving a Federal Tribunal (GPN-TRIB) - proposed consent orders signed on behalf of the applicant and the Minister. In accordance with the Practice Note, the proposed consent orders contained notes providing a succinct statement of the matters relied upon to justify the making of those orders. The notes were in the following form:
   1. The first respondent concedes that the decision of the second respondent (Tribunal) is affected by jurisdictional error as it denied the applicant procedural fairness by overlooking substantial and clearly articulated arguments advanced by the applicant. Specifically, the Tribunal failed to consider the arguments advanced in the applicant's Statement of Facts, Issues and Contentions (ASFIC) dated 3 March 2025 (Court Book (CB) 1-23).
   2. The proceedings before the Tribunal were conducted after a prior decision by the then Administrative Appeals Tribunal (AAT) dated 3 November 2023 was quashed by consent by orders made by Justice Needham on 26 July 2024 in proceedings NSD55/2024 (CB 1173-1175). In the AAT proceedings, the applicant filed a Statement of Facts, Issues and Contentions dated 15 September 2023 (first ASFIC). In its reasons, the Tribunal makes multiple references to the first ASFIC dated 15 September 2023 (see for example [15], [81], [153]-[154], [169], [220], [251]) but makes no reference to the ASFIC dated 3 March 2025.
   3. The first respondent accepts that when making its decision dated 14 May 2025, the Tribunal failed to consider the ASFIC dated 3 March 2025 and the substantial, clearly articulated arguments advanced by the applicant in it (including, for example, the submissions regarding the applicant's risk of reoffending made at [44]-[45] of the ASFIC). The first respondent accepts that this amounted to a failure to accord the applicant procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 73 ALD 321; [2003] HCA 26 at [24]. The first respondent also accepts that the Tribunal's decision could have been different if the error had not been made such that the error was material, and therefore jurisdictional: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; (2024) 98 ALJR 610; [2024] HCA 12.

1. After reviewing the notes in the context of the Court Book, I was not persuaded that the orders sought should be made and asked that the applicant and the Minister provide submissions addressing several issues. They did so, and having reviewed those submissions in the context of the Court Book, I was satisfied that the orders should be made. It is appropriate, despite the orders having been agreed between the applicant and the Minister, that I explain my reasons for making the orders: see, e.g., Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at 327 to 328 [12] (French J); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; (2022) 181 ALD 49 at 50 ([3] to [6]) (Colvin J). I do so briefly below.
2. The hearing before the Tribunal was conducted by reference to a document titled "Outline of Submissions for the Applicant" and which was marked as Exhibit 1 with the title "Applicant's Statement of Facts, Issues and Contentions (03/03/2025)" (March 2025 AFSIC). The March 2025 AFSIC included a number of arguments advanced by the applicant (applicant's arguments) which were not addressed in the Tribunal's reasons for its decision. These included arguments that: the applicant's experience of imprisonment and detention had had a rehabilitative effect upon the applicant; Direction No 110, made under s 499 of the Act, specifically required that weight be given to the period of three years spent by the applicant in the community in which he did not re-offend; and the primary consideration of the expectations of the Australian community did not weigh heavily against revocation because the applicant had not engaged in conduct of the various kinds specified in the Direction (e.g., conduct involving violence, coercion and vulnerable persons).
3. It is common ground between the applicant and the Minister in this proceeding that the Tribunal did not consider the applicant's arguments in the requisite sense described in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at 598 to 599 [24] (Kiefel CJ, Keane, Gordon and Steward JJ); and that as a result the Tribunal did not carry out its statutory task and did not afford procedural fairness to the applicant.
4. The caution to be observed before drawing an inference that a Tribunal has failed to address a particular matter was explained by a Full Court of this Court (French, Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 to 605 [47]. Relatedly, the reasons of the Tribunal are to be read fairly as a whole, and not construed minutely and finely with an eye keenly attuned to the perception of error: see, e.g., Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1 at 604 [38]; Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at 1382 [16] (Gageler CJ, Edelman and Jagot JJ); RCLN v Minister for Immigration and Citizenship [2025] FCAFC 113 at [27] (Perry, Sarah C Derrington and Abraham JJ).
5. Bearing these matters in mind, I was nevertheless persuaded that an inference should be drawn that the Tribunal did not address the applicant's arguments in the requisite sense. Such an inference arises from:

(1) numerous references in the reasons to a Statement of Facts, Issues and Contentions filed by the applicant in September 2023 (September 2023 AFSIC), including: references to it as "his SOFIC"; a reference to it at paragraph 15 of the reasons as part of the Tribunal's description of the way that the applicant had presented his case; and an extensive reproduction of parts of it at paragraph 81 of the reasons;

(2) the absence of any reference in the reasons to the March 2025 AFSIC, other than as part of a list of exhibits annexed to the reasons; and

(3) the absence of any reference in the reasons to the applicant's arguments.

1. The compelling inference is that the Tribunal addressed the application by reference to the September 2023 AFSIC and not by reference to the March 2025 AFSIC (and did not engage in the requisite sense with the applicant's arguments). Thus, the Tribunal erred. I was also satisfied that the error was material and thus jurisdictional; and that the relief sought was appropriate.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.