Minister for Immigration and Multicultural Affairs v YMGL [2025] FCA 1273

1. By an originating application filed on 9 April 2025, the Minister for Immigration and Multicultural Affairs applied for review of a decision made by the Administrative Review Tribunal dated 5 March 2025. The Tribunal set aside a decision by a delegate of the Minister to refuse to grant a Safe Haven Enterprise visa (SHEV) to the first respondent, and purported to substitute a decision "that the decision refusing to grant [the] Applicant's visa is revoked".
2. The Minister relied on three grounds of review. As will become apparent, it is necessary to mention only one of those review grounds, namely that the Tribunal misunderstood its statutory task and asked itself the wrong question or applied the wrong statutory test. The Minister alleged that, instead of addressing whether to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant a SHEV to the first respondent, the Tribunal erred by addressing the question in terms of whether it was satisfied that there was another reason to revoke the cancellation of the first respondent's visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act.
3. While the first respondent contends that the Tribunal's decision was correct in substance, he concedes that the Tribunal erred by repeatedly referring to the incorrect statutory test for making a "revocation decision" under s 501CA(4) of the Migration Act. The first respondent submits that, while there is a substantial overlap in the tests under ss 501(1) and 501CA(4) of the Migration Act respectively, it is difficult to avoid the conclusion that the Tribunal erred by asking itself the wrong question in reaching its decision. The first respondent accepts that such an error was material to the Tribunal's decision, referring to Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 and Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667.
4. Accordingly, in advance of the case management hearing, the first respondent proposed orders that a writ of certiorari issue quashing the Tribunal's decision and a writ of mandamus issue requiring the Tribunal to determine the application for review according to law. These orders reflect the relief sought by the Minister in the originating application.
5. The Minister did not oppose such orders being made, but for a "sticking point" having arisen on the question of costs. The first respondent submitted that there should be no order as to costs (that is, that each party should bear its own costs). The Minister, on the other hand, sought further time to obtain instructions on costs, noting that any settlement on the question of costs must be made in accordance with legal principle or practice: see Legal Practice Directions 2017 (Cth) s 4.4; Appendix C, cl 2.
6. The Minister also indicated that the parties had not yet agreed on the terms of a note for inclusion in any proposed consent order setting out the matters that are said to justify the making of the order, that is, recording the basis of the concession that the Tribunal's decision was affected by jurisdictional error: see Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB), cl 2.1.
7. At the conclusion of the case management hearing, I considered that it was appropriate to make orders in the terms proposed by the first respondent. I now provide my reasons for making those orders.
8. The orders setting aside the Tribunal's decision and remitting the matter to the Tribunal are essentially made by consent. I will consider below whether I am satisfied that there was an error in the Tribunal's decision that justifies the grant of the relief sought by the Minister. In the circumstances of the present case, there is no conceivable basis on which costs should be ordered against the first respondent, and no such basis has been advanced by the Minister. The Minister has no entitlement to costs that could form the subject of any settlement for the purposes of the Legal Practice Directions. Accordingly, it is unnecessary to allow the Minister further time to obtain instructions as to its position in relation to costs.
9. As Colvin J stated in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; (2022) 181 ALD 49 at [3], "[e]ven where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error". A consent order is an exercise of judicial power, and the Court must satisfy itself both that the order is within power and that it is appropriate to make the order: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12] (French J); Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [13]-[15] (Downes, Greenwood and Tracey JJ); Linfox Australia Pty Ltd v Warusawithana [2025] FCA 717 at [4]-⁠[5] (Horan J).
10. In particular, "[i]n the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred": Kovalev at [12] (French J). Justice Colvin explained that "[i]t is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded": VNPC at [3]. Thus, as Colvin J stated in VNPC at [4]:

... in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

1. It should be noted that, in considering whether it is appropriate to make proposed consent orders, it is not the function of the court to impede settlement between parties who are legally represented and able to understand and evaluate the desirability of agreeing to a settlement, and the approach of the Court "does not require exacting inquiry" into the basis for the proposed orders: Kovalev at [12], [14] (French J). Further, provided that the basis for the orders is clearly identified (e.g. the nature of the error made by the decision-maker or tribunal), whether in a note to the orders or in accompanying reasons, the Court is not required to provide detailed reasons for its satisfaction that the orders are within power and appropriate: Kovalev at [19] (French J).
2. Having reviewed the Tribunal's reasons, I am satisfied that the first respondent properly and appropriately conceded that the Tribunal erred by asking itself the wrong question.
3. The decision under review was a refusal to grant a SHEV to the first respondent under s 501(1) of the Migration Act, on the ground that he did not satisfy the delegate that he passed the character test. However, the Tribunal erroneously proceeded on the basis that the issue to be determined on review was whether there was "another reason" to revoke an original decision to cancel the first respondent's visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act. The Tribunal's reasons are replete with references to the wrong statutory provisions, and repeatedly frame the issues and the key findings by reference to the wrong statutory test.
4. As counsel for the first respondent observed in his submissions before this Court, there is a substantial overlap in the considerations that are taken into account in exercising the discretion to refuse to grant a visa under s 501(1) and those taken into account in an exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision. Both powers are governed by the same Ministerial direction (Direction No 110 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth)). In the present case, the Tribunal gave detailed consideration to the particular facts of the first respondent's case, and made a number of findings that were favourable to him on many of the primary and other considerations under Direction No 110, and on the overall weighing of those considerations in his favour. Subject to a challenge by the Minister to aspects of the Tribunal's findings in relation to the legal consequences of its decision, no issue has been taken in the current proceedings with the Tribunal's findings on the particular facts.
5. Nevertheless, it is clear from the Tribunal's reasons that it misconceived the nature of the power that was being exercised on the review. Notwithstanding the overlap in the considerations relevant to their exercise, the powers conferred by s 501(1) and 501CA(4) are distinct and different in material respects: see e.g. Nguyen at [74]-⁠[84] (O'Sullivan J); Peralta Montes at [43]-[56]. In the present case, this error is even more clearly manifested in the Tribunal's reasons than was the case in Nguyen or Peralta Montes - here, the Tribunal specifically identified ss 501(3A) and 501CA(4) as the "[r]elevant law", and consistently referred to whether the "cancellation decision" should be affirmed or revoked.
6. I am therefore satisfied that the Tribunal erred by asking itself the wrong question or by applying the wrong statutory test. Further, I am satisfied that this error was material to the Tribunal's decision, noting that the threshold of materiality is "not demanding or onerous" and that it is sufficient that there is a realistic possibility that the outcome could have been different if the error were not made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). There is no basis on which it can be affirmatively concluded that the outcome would inevitably have been the same, particularly given that the Court cannot assume the function of the Tribunal in relation to the assessment of the facts and the exercise of discretion: LPDT at [15]-[16].
7. As the first respondent conceded the Tribunal's error at the earliest possible opportunity after having retained pro bono counsel, there is no basis on which he should be required to pay the Minister's costs of the proceeding.
8. For these reasons, I was satisfied that it was appropriate to make the following orders:

(1) A writ of certiorari issue quashing the decision of the Administrative Review Tribunal dated 5 March 2025.

(2) A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine the applicant's review application according to law.

There be no order as to costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.