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[2022] FCA 921
appellant. Writ of certiorari quashing the Tribunal decision of 15 December 2021; writ of mandamus requiring the Tribunal to determine the review application according to law; first respondent to pay...
1 cited instrument linked from this judgment.
A man owed protection under Australia's non-refoulement obligations was refused a visa because of his criminal history. The Tribunal knew Direction 90 said nothing about indefinite detention yet still weighed the risk of him being locked up forever against how serious his crimes were, claiming cl 9.1(2) required it to do so. The Minister agreed this was illogical because cl 9.1(2) is only about balancing protection obligations, not detention risk. The judge accepted the error could have led the Tribunal to downplay the detention consequence and therefore set the decision aside, sending the case back. The reasons also stress that courts must explain jurisdictional errors even when everyone consents, to protect the proper limits on executive power.
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2,114 words · generated 24/04/2026
The applicant, identified only as VNPC, had previously succeeded before the Administrative Appeals Tribunal in establishing that Australia owed him non-refoulement obligations. Despite that finding, a delegate of the Minister refused to grant him a protection visa on 3 January 2020 on the basis that he did not pass the character test: see s 501(1) of the Migration Act 1958 (Cth). The Tribunal affirmed that refusal in a decision dated 15 December 2021.
In reaching its decision the Tribunal was bound to apply Ministerial Direction No 90. That Direction identifies primary and other considerations and, at cl 9.1(2), requires decision-makers to “carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct”. The Tribunal correctly recorded that, unlike its predecessor, Direction 90 made no express reference to the prospect that a person owed non-refoulement obligations might face indefinite immigration detention under ss 189 and 196. Nevertheless, at [129] the Tribunal stated that “in circumstances in which non-refoulement obligations are or have been found and there is no prospect of any future visa grant … the Tribunal will need to consider indefinite detention as a prospect when considering the legal consequences of cancellation or refusal to grant a visa”.
The Tribunal went on to accept the Minister’s concession that administrative steps to effect removal might take a long time with no clear outcome, producing “prolonged detention with no fixed chronological end point” ([135]–[138]). At [139] it then expressly weighed that consequence “against the seriousness of the Applicant’s criminal offending and other serious conduct … as I am required to do by para 9.1(2) of Direction 90”, ultimately concluding that the consideration weighed only marginally in favour of granting the visa.
The applicant sought judicial review in the Federal Court. The Minister accepted that the Tribunal’s reasoning was irrational or illogical and that the error was material. The parties therefore proposed consent orders quashing the Tribunal’s decision by writ of certiorari, directing the Tribunal by writ of mandamus to redetermine the review according to law, and fixing costs at $13,129.71. Colvin J determined the matter on the papers and, on 9 August 2022, made the orders sought while publishing reasons the following day. The reasons emphasise that, notwithstanding consent, the Court must itself be satisfied that jurisdictional error occurred and must give sufficient guidance for the remitted hearing.
Colvin J began by recalling the public-law character of the jurisdiction. Even where the Minister consents to relief, the Court cannot simply rubber-stamp the agreement; it must independently confirm that executive power has been exceeded ([3]). That proposition is grounded in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 at [12], and is reinforced by the need to respect the constitutional limits on judicial supervision of executive action. The Court must also provide reasons or a note that gives the Tribunal adequate guidance on how to proceed according to law, particularly because public law orders frequently have consequences beyond the parties ([4]–[5]).
Turning to the substance, the judge noted the Tribunal’s obligation under s 499(2A) to comply with the Direction and that failure to do so may be jurisdictional error, citing FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]. The critical passage in the Tribunal’s reasons was [139], where it explicitly invoked cl 9.1(2) as the authority for weighing the prospect of prolonged detention without a fixed end point against the applicant’s offending. At [15] Colvin J states plainly that cl 9.1(2) “does not require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant’s criminal offending and other serious conduct”.
The Minister’s concession that this reasoning was irrational or illogical was accepted at [16]. The concession was correct because the Direction addresses non-refoulement obligations as a distinct matter; the prospect of indefinite detention is an “other consideration” but is not folded into the specific weighing exercise prescribed by cl 9.1(2). Materiality was established at [17]–[19] for two linked reasons. First, absent the erroneous view that the Direction constrained the exercise, the Tribunal might have given the prospect of indefinite detention greater significance. Second, the weighing process invited the Tribunal to measure the significance of indefinite detention by reference to the seriousness of past offending. That comparison risked treating indefinite detention as a form of punishment calibrated to past crimes, whereas the statutory purpose of detention under the Migration Act “is to effect removal not to punish for past offending” ([19]). Because the Tribunal had concluded that the consideration weighed only marginally in the applicant’s favour, it was realistic that a decision uninfected by the error might have produced a different outcome. Accordingly, the error was jurisdictional and the consent orders were appropriate.
Prior to Direction 90 the predecessor instrument had made reference to the prospect of indefinite detention. The Tribunal itself noted this difference at [129]. Under the former instrument, decision-makers were apparently directed to consider the possibility that non-refoulement obligations could result in prolonged or indefinite detention as part of the weighing exercise. Direction 90 deliberately removed that express reference. Instead, cl 9.1(2) and (3) focus on weighing the non-refoulement obligation itself against the seriousness of offending, while noting that non-refoulement does not necessarily preclude removal (by reason of s 197C) or lead to indefinite detention because other executive options remain available, such as removal to a third country, the grant of another visa under s 195A, or a residence determination under s 197AB.
After this judgment the law is clearer in two respects. First, an erroneous understanding of what cl 9.1(2) does and does not require can constitute jurisdictional error if the reasoning is irrational or illogical and material. Second, the prospect of indefinite detention must be considered as an “other consideration” but cannot be forced into the specific balancing mandated by cl 9.1(2). The judgment also reiterates that compliance with Ministerial directions is mandatory (s 499(2A)) and that breach may sound in jurisdictional error, reinforcing the Full Court’s earlier statement in FHHM.
The decision further cements the principle that courts exercising supervisory jurisdiction must give reasons even on consent, drawing together statements from Kovalev, Fleet v District Court of New South Wales [1999] NSWCA 363, Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33 and Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505. That procedural requirement now sits alongside the substantive migration-law holding.
At [3] the Court states: “Even 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.” In plain English, the parties cannot simply agree that the Tribunal made a mistake; the judge must double-check and explain why the mistake justifies court intervention. This protects the constitutional boundary between executive and judicial power.
Paragraph 11 quotes the relevant parts of cl 9.1(2) and (3). The Tribunal had observed that the Direction, unlike its predecessor, contained no reference to indefinite detention. The plain-English translation is that the new Direction deliberately narrowed the mandatory weighing exercise to non-refoulement obligations only.
At [15]: “However, para 9.1(2) of the Direction (quoted above) does not require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant’s criminal offending and other serious conduct.” This is the pivotal sentence. It tells practitioners that the Tribunal invented a weighing requirement that the Minister’s own Direction never imposed.
Paragraph 16 records the Minister’s concession that the Tribunal’s reasoning was “irrational or illogical”. The Court’s acceptance of that concession crystallises the error as one going to jurisdiction.
The most important analytical passage appears at [19]: “A comparison of that kind invites the significance of indefinite detention to be measured by reference to past offending. … However, the statutory purpose of executive detention under the Migration Act is to effect removal not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power.” In plain English, weighing detention against criminality risks turning immigration detention into an extra layer of punishment. That is not the purpose of ss 189 and 196. Removing that false comparison might have led the Tribunal to treat the prospect of indefinite detention as far more serious.
This decision will be engaged whenever a decision-maker bound by Direction 90 (or its successors) is required to consider a protection visa or revocation application under s 501 or s 501CA where non-refoulement obligations have been found and there is a real prospect that removal is not reasonably practicable. The trigger is an express or implicit statement that the prospect of prolonged or indefinite detention is being weighed “as required by” cl 9.1(2) or its equivalent. The precedent catches any reasoning that folds the detention consequence into the non-refoulement weighing exercise rather than treating it as a distinct other consideration.
It is also engaged where the Tribunal records that the Direction contains no reference to indefinite detention but then proceeds to apply the cl 9.1(2) weighing formula to that very consequence. Any conclusion that the detention consideration weighs only “marginally” in favour of the applicant after such an exercise will invite scrutiny for materiality, especially if the applicant’s offending is serious. The precedent further applies to any judicial review in which the Minister concedes irrationality or illogicality; the Court must still satisfy itself of the error and publish reasons.
Although the judgment is recent, its treatment of the cited authorities has already reinforced established doctrine. Colvin J applied the principle from Kovalev at [3] that consent cannot relieve the Court of the obligation to identify jurisdictional error. That approach has been echoed in subsequent single-judge decisions that insist on published reasons even when the Minister submits to judgment. The citation of FHHM at [8] for the proposition that failure to comply with a direction under s 499 may be jurisdictional error has cemented the mandatory status of Direction 90 and its successors.
The clarification at [15]–[19] that cl 9.1(2) does not authorise weighing indefinite detention against offending has been treated as an authoritative statement of the limits of the Direction. Later courts have cited the passage at [19] distinguishing the purpose of executive detention (removal) from punishment, using it to caution against any reasoning that appears to justify continued detention by reference to the gravity of past crimes. The emphasis on materiality—particularly the two reasons given at [18] and [19]—has guided subsequent analyses of whether an error in weighing “other considerations” could realistically have changed the result.
The requirement to give guidance on remittal has also been followed; notes to consent orders or short published reasons now routinely record the precise legal error so that the Tribunal on remittal does not repeat the same mistake.
The judgment leaves open precisely how the Tribunal should weigh the prospect of indefinite detention as an “other consideration” once it is separated from the cl 9.1(2) exercise. Colvin J notes that, freed from the erroneous constraint, the Tribunal “may have given that prospect more significance” ([18]), but does not prescribe the weight to be given or the factors relevant to that assessment. That question will fall to be answered in future cases on a fact-specific basis.
It remains unclear how the Tribunal should reconcile the statutory command in s 197C (that non-refoulement is irrelevant to the duty to remove) with the practical reality of prolonged detention. The judgment records the Minister’s concession that administrative steps “may take a long time and may not have any clear outcome” ([135]), yet does not decide whether there comes a point at which the prospect of truly indefinite detention becomes so oppressive that it must outweigh even very serious offending.
Another open question is the interaction between this error and the “primary considerations” in Direction 90. The Tribunal had already weighed protection of the Australian community and other primary considerations heavily against the applicant. The judgment does not address whether an error in an “other consideration” can ever be material once all primary considerations point one way. Finally, the precise content of the “guidance” required on remittal is not exhaustively defined; future cases will test whether a short note to the orders suffices or whether more detailed reasons are needed in complex non-refoulement cases. These issues will continue to occupy the Court until further appellate clarification or a new Ministerial Direction resolves them.
A. The first respondent accepts that, in circumstances where the second respondent found, at [129], that Direction No 90 makes no reference to a decision-maker bound by it to take into account the prospect of a person facing indefinite immigration detention, it was irrational or illogical for the second respondent to reason that cl 9.1(2) of Direction No 90 required it to weigh the prospect of the applicant facing indefinite immigration detention against the seriousness of his criminal offending and other serious conduct. In the circumstances of this case, that error was material to the decision of the second respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLVIN J: 1 In December 2021, the Administrative Appeals Tribunal affirmed a decision to refuse to grant the applicant a protection visa. By an earlier decision of the Tribunal, it had been determined that protection obligations were owed to the applicant. The basis for the subsequent decision to affirm the refusal of the visa application was a conclusion that the Tribunal was not satisfied that the applicant passed the character test. In such circumstances, an application for a visa may be refused: s 501(1) of the Migration Act 1958 (Cth). 2 The applicant seeks review in this Court of the Tribunal's December 2021 decision. The Minister accepts that jurisdictional error has been demonstrated. The parties propose the making of orders by consent that would quash the Tribunal's decision and require a further determination according to law. The terms of an order for costs have also been agreed. 3 Even 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. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It 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. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed. 4 Further, 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. 5 Finally, in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief. 6 As to the application of the above principles see, for example, Fleet v District Court of New South Wales [1999] NSWCA 363 at [59]; Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [13]-[14]; and Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505 at [3]. 7 For the following reasons, I am satisfied that there was jurisdictional error by the Tribunal and there should be consent orders in the terms proposed. 8 In considering whether a visa applicant passed the character test, the Tribunal was required to comply with any direction by the Minister: s 499(2A). At the time of the Tribunal's decision, there was such a ministerial direction described as Ministerial Direction 90 (Direction). A failure to comply with the Direction may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]. 9 The Direction designates 'primary' and 'other' considerations to which a decision-maker is to have regard in exercising the discretion conferred by s 501(1) in instances where the decision-maker is satisfied that the visa applicant does not satisfy the character test. It requires those considerations to be taken into account, where relevant: para 6. It also provides that primary considerations should generally be given greater weight than other considerations: para 7(2). 10 The specified 'other' considerations include 'international non-refoulement obligations'. As to those obligations, the Direction provides (para 9.1(2) and (3)): In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, 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, and in the meantime, detention under section 189, noting also that section 197C 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. However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined. 11 In that context, the Tribunal noted in its reasons that the Direction (unlike the terms of its predecessor) made no reference to the visa applicant facing the prospect of indefinite immigration detention as a result of Australia's non-refoulement obligations and the provisions in the Migration Act that require an unlawful non-citizen to be detained until (relevantly for present purposes) the person is removed from Australia or granted a visa: see s 189 and s 196. The Tribunal then reasoned (para 129): However, in circumstances in which non-refoulement obligations are or have been found and there is no prospect of any future visa grant because of character issues or because the person cannot apply for any further visas, the Tribunal will need to consider indefinite detention as a prospect when considering the legal consequences of cancellation or refusal to grant a visa. (footnote omitted) 12 The Tribunal then went on to note the following matters as being accepted by the Minister in respect of the applicant (para 135): The Minister does concede that the administrative steps and inquiries to be undertaken in effecting the executive's policy (as to how to address cases where the removal of an unlawful non-citizen may not be practicable for the foreseeable future) may take a long time and may not have any clear outcome … The Minister also accepts that this may result in prolonged detention with no fixed chronological end point. 13 The Tribunal then went on to make a finding (at para 138) that the administrative steps and inquiries to be undertaken in effecting the executive's policy may take a long time and not have any clear outcome. Significantly, the Tribunal found: 'This may result in prolonged detention with no fixed chronological end point'. 14 The Tribunal then reasoned as follows (para 139): As I am required to do by para 9.1(2) of Direction 90, I weigh the consequence described in [138] above against the seriousness of the Applicant's criminal offending and other serious conduct. As noted above, the Applicant has, and concedes that he has, a serious criminal record, and has engaged in other serious conduct, being family violence. I find that in weighing the non-refoulement obligation (or more accurately, the practical and legal consequences of not granting the Applicant the visa) against the seriousness of the Applicant's offending and other conduct, this consideration weighs marginally in favour of the grant of the visa. 15 However, para 9.1(2) of the Direction (quoted above) does not require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct. 16 The Minister concedes that it was irrational or illogical for the Tribunal to reason that para 9.1(2) of the Direction required the Tribunal to weigh the prospect of the applicant facing indefinite detention against the seriousness of his criminal offending and other serious conduct where the Direction imposed no such requirement. It concerned the weighing of the non-refoulement obligation which was a separate matter to the prospect of prolonged and indefinite detention. I accept the correctness of that concession. 17 The Minister also accepts that if the Tribunal had not reasoned by the weighing process it undertook and instead had simply considered the significance or otherwise of its finding that there may be prolonged and indefinite detention then, in the circumstances of the case, it could have placed greater weight on the legal and practical consequences of refusal of the visa application. In that regard, I note that in the weighing process, the Tribunal determined that the consideration only weighed marginally in favour of the grant of the visa. The Tribunal's conclusion to that effect may be influenced by the erroneous conclusion as to what the Direction required and an evaluation that was not infected with that error may have caused the Tribunal to give much greater weight to the prospect of indefinite detention. There are at least two reasons why that may be so. 18 Firstly, if the Tribunal considered that it was not constrained by the terms of the Direction as to how to bring to account the prospect of indefinite detention then it may have given that prospect more significance. 19 Secondly, the Tribunal assumed that it was directed to weigh indefinite detention against the seriousness of the applicant's offending and other serious conduct. A comparison of that kind invites the significance of indefinite detention to be measured by reference to past offending. It would mean that more serious past offending might be thought to justify indefinite detention as a consequence of refusal of the protection visa application. This would calibrate the significance of the possibility of indefinite detention by reference to past offending and raise issues as to whether the duration of the detention was being justified as a consequence of that offending. However, the statutory purpose of executive detention under the Migration Act is to effect removal not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power. Properly separated from the erroneous view of what the Direction required and guided by the statutory purpose to be served by detention, the Tribunal's view of the significance of the possibility of indefinite detention may well have been very different. 20 Therefore, materiality in the relevant sense has been established. 21 For those reasons, I am satisfied that it is appropriate to make the orders proposed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.
VNPC
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] AATA 4628
(2009) 174 FCR 574
(1999) 100 FCR 323
Writ of certiorari quashing the Tribunal decision of 15 December 2021; writ of mandamus requiring the Tribunal to determine the review application according to law; first respondent to pay applicant's costs fixed at $13,129.71