ZTBL v Minister for Immigration and Citizenship [2025] FCA 652

Particulars

1. On 3 October 2023, the Minister set aside the Tribunal's decision under s 501A(2) of the Act and refused the Appellant a protection visa;
2. The Minister, in addition to having express regard to indefinite detention in favour of the Appellant, had implied regard to indefinite detention as the basis for matters weighing against the Appellant, being the protection of the Australian community, family violence and the expectations of the community;
3. As the primary judge recognised, indefinite detention was therefore of critical or material importance to the Minister's decision against the Appellant;
4. The Minister may commit a jurisdictional error by failing to act on a correct understanding of the law on a point of sufficient significance to the ultimate decision, even if the error of law is established by a subsequent judicial decision operating retrospectively: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 64; 285 FCR 667;
5. Such an error arose in the present case due to the Minister's reliance on the lawfulness of the Appellant's indefinite detention displaced by the later decision of the High Court in NZYQ v Minister for Immigration [2023] HCA 37; 97 ALJR 1005.

1. The Full Court in that case said (at 590 [12]) that this ground of appeal:

... asserts that the Minister made a jurisdictional error of law in making his decision on the basis of the law as it was then understood to be as proclaimed by the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) whereas the law, as later proclaimed with retrospective effect in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 (NZYQ), was different. It is said that the Minister's erroneous understanding of the law was that if the appellant's protection visa application was refused and the appellant was granted no other visa, the appellant would remain in immigration detention until he could be removed to another country, if and when that occurred.

1. It found (at 598 [56]) that "the Minister's erroneous understanding of the law was outside the jurisdiction conferred on him by the statutory provision; it was a jurisdictional error. The appeal should therefore be allowed and the decision of the Minister set aside".
2. The applicant submitted that the Tribunal in this case committed the same type of error that the Minister committed in AJN23, and that the same finding should therefore be made.

1. The applicant also contended that the Tribunal's understanding of the requirements in clause 070.612A departed from the proper interpretation of that clause.
2. As I have noted above, the Tribunal found at [95] that clause 070.612A "requires the Minister to consider whether it is reasonably necessary to impose conditions 8621 (monitoring device) and 8620 (curfew), among others, for the protection of any part of the Australian community".
3. Quoting YBFZ at 23 [85], the applicant submitted that:

... the required state of satisfaction ... "involves a positive state of mind about a negative stipulation ('the Minister is satisfied that it is not reasonably necessary to impose that condition') so that if the Minister cannot be so satisfied the conditions must be imposed, meaning that the provision resolves all doubt and uncertainty in favour of the imposition of the conditions".

1. The applicant contended that the Tribunal's alleged misunderstanding of the required state of satisfaction of the Minister when imposing the conditions fatally undermined its statutory task to review the decision of the Minister, and that this amounted to a jurisdictional error.

1. The applicant further contended that the Tribunal's jurisdictional error was "material to its decision" because it "imbued" or "infused" the Tribunal's reasons, and was "centrally relevant" to the Tribunal's findings in relation to both primary consideration 1 and other consideration (a).
2. Under the applicant's counterfactual, if the Tribunal had acted on a correct understanding of the law - according to which a decision to affirm the Minister's non-revocation of the cancellation of the applicant's permanent visa would result in the applicant being subject to a bridging visa without monitoring or curfew conditions - the discrepancy between the two visas would have been somewhat reduced, such that the Tribunal might have instead decided to revoke the permanent visa cancellation.
3. The applicant also contended that the Tribunal's error was not immaterial merely because it may have partially operated in the applicant's favour (for example, in relation to other consideration (a)). In that regard, he relied on this passage from AJN23 at 597 [51]:

... A multifactorial evaluative decision such as that of the Minister cannot be analysed as a simple balancing exercise; "[a] task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments": CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] per Colvin, Stewart and Jackson JJ, and see also [27] and [34]-[35]. Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot "be affirmatively concluded that the outcome would inevitably have been the same had the error not been made": LPDT at [16].

(a) the Tribunal did not commit any error of law with respect to the Invalid Bridging Visa Conditions issue, and did not commit any error with respect to the State of Satisfaction issue;

(b) any error committed by the Tribunal was not jurisdictional in nature; and

(c) if there was a jurisdictional error, it was not material to the Tribunal Decision.

1. Mr Solomon-Bridge conceded during his oral submissions that "[m]y learned friend is quite right to say that the law as pronounced by the High Court is - the legal fiction is, it's the law as it's always been".
2. He also submitted that it is appropriate to characterise any error by the Tribunal (if there be one) as "a disappointed prediction of fact", not law, as follows:

[N]ot only was this not a relevant area of law, but, in truth, it was just a disappointed prediction of fact. The tribunal was making a reasonable assessment, given the temporary quality of the bridging visa and its conditions, about what conditions might subsist for the foreseeable future ... it turned out that those predictions did not fully come to pass, in part because of the intervention of the High Court. But we say that that really is nothing more than, in the context of the tribunal's reasons, an error about a prediction of fact, which, a fortiori, wouldn't be a relevant area of law.

1. In relation to this issue, the Minister contended as follows:
   1. The applicant complains of an additional misunderstanding concerning the construction of cl 070.612A. It is not apparent how the applicant alleges that the Tribunal ought to have construed that regulation in a certain way, when he simultaneously alleges that the Tribunal ought to have proceeded at all times as though it was invalid and inoperative.
   2. The Tribunal acknowledged the relevant part of its reasoning "dr[e]w heavily" from submissions by the Minister to it and "which were not challenged by the [a]pplicant", who was represented by solicitors and experienced counsel (now federal Judge).
   3. In any event, the Tribunal's introductory observation that cl 070.612A "requires the Minister to consider whether it is reasonably necessary to impose" the relevant visa conditions was simply an identification of the general subject matter to which the Minister was to turn his mind: it was not purporting to assay the precise effect of the clause, noting that it was not seized of any bridging visa decision-making.

1. The Minister submitted that any error committed by the Tribunal in relation to the application of clause 070.612A was not a jurisdictional error because it did not relate to the power in s 501CA of the Act under which the Tribunal was acting. Putting the submission another way, the Tribunal's exercise of power under s 501CA in respect of the permanent visa could be dissociated from any power exercised by the Minister under clause 070.612A in respect of the bridging visa, such that an error with respect to the latter could not infect the former.
2. As the Minister contended:
   1. The applicant asserts here that the Tribunal misunderstood the law in not anticipating that the High Court was soon to declare invalid cl 070.612A ... However, that was not the law under which the Tribunal acted; rather, the Tribunal was acting under s 501CA of the Migration Act and considering whether it should exercise powers to reinstate the applicant's permanent visa.

...

1. In considering that the applicant's bridging visa would be attended by visa condition 8620 (curfew) and 8621 (monitoring device), the Tribunal was doing no more than making a reasonable prediction about the continuation of that state of affairs. As it happens, that prediction turned out to be correct to a significant extent (see par 14 above), and notwithstanding YBFZ. The Tribunal was not purporting to construe the law under which it acted, by making that prediction.

(Emphasis in original.) (Citations omitted.)

1. During his oral submissions, Mr Solomon-Bridge elaborated as follows:

[T]here has to be some additional quality which connects the error to the actual exercise or powers that are being exercised by the repository.

...

I think the problem with the applicant's ground is that he seeks to identify an error which has nothing to do with 501CA, subsection (4). That was the power being considered and exercised by the tribunal. Was there another reason to reinstate the permanent visa. Yes, as a matter of historical fact, it considered in the mix, as it were, what sort of bridging visa the applicant might enjoy should the tribunal decide matters one way or the other, but that was not - that is not to say that its divination or prediction about those conditions, even if it be an error, was an error that was as to the law under which the tribunal acted, which is 501CA(4).

1. In the alternative, the Minister submitted that any jurisdictional error committed by the Tribunal was not material to its ultimate decision because:

(a) only "marginal weight" was given to the bridging visa conditions;

(b) the fact that the Tribunal was clear about the extent to which each consideration informed its ultimate conclusion means that it is possible for the court to identify whether the same decision would have been reached if a factual basis of one or more considerations (namely, the bridging visa conditions in the context of primary consideration 1 and other consideration (a)) had been removed; and

(c) the purported jurisdictional error operated in favour of the applicant in some instances.

1. In this regard, the Minister submitted:
   1. To the extent that the Tribunal considered the burden of visa condition 8620 (curfew) and 8621 (monitoring device) on the applicant's day to day life (T:[110]-[113]), that was a matter which was weighed "moderately in favour" of the applicant (T:[114]). Had the Tribunal correctly anticipated the High Court's ruling in YBFZ, this aspect of the Tribunal's reasoning could only have considered this matter to have weighed less in favour of the applicant and, like in YQLH v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 293 at [43], "could not possibly have caused the Tribunal to give greater weight in favour of revocation than what was ultimately decided": see also AJN23 at [55] and compare at [51].
   2. Otherwise, the Tribunal held that Primary Consideration 1 weighed heavily against revocation of the cancellation of the applicant's permanent visa (T:[101]). The particular relevance of the visa condition 8620 (curfew) and 8621 (monitoring device) to that Primary Consideration were "allocate[d] only marginal weight" in that regard (T:[100]).
   3. Ultimately, it is submitted that, in the particular circumstances of this case, there is no "improper speculation" in holding there to be no realistic possibility that the decision might have been different had the Tribunal proceeded on the basis that cl 070.612A was invalid: cf. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [36]; AJN23 at [51].

1. Mr Solomon-Bridge also said the following during his oral submissions:

[W]hat, in fact, the tribunal does is expose quite transparently how it has reasoned on each of the matters, and how each matter is then weighed together. So noting the hurdles which the Minister faces after LPDT when it comes to sustaining evaluative decisions, one of whose component parts might be affected by error, if ever there was a case which didn't involve impermissible speculation, this would be it. Because the marginality, the peripheral nature of it, combined with the way in which the tribunal's reasons are commendably transparent of the reasoning process, allows your Honour to make reasonable assessments about whether the decision could realistically have been different had the so-called error not been engaged in.

1. As to AJN23, the Minister submitted:
   1. In that case, the appellant alleged that the Minister had made a jurisdictional error in making his decision on the basis that, if the appellant's protection visa application was refused, and he was granted no other visa, the appellant would remain in indefinite detention - whereas, following NZYQ, that would not be the case.
   2. The Full Court held that that misunderstanding "was of real significance to the ultimate decision" ([44]). For reasons submitted ... in relation to materiality, it is submitted that the same observation could not be made here.
   3. In any event, whether a non-citizen will remain in detention indefinitely as the proximate result of a decision is, it is submitted, a qualitatively different matter from a prediction whether inherently variable conditions of a bridging visa may or may not continue in relation to a particular person.
   4. Should AJN23 apply here, the Minister makes the formal submission that it was wrongly decided. A Full Court of the High Court is scheduled to hear argument to that effect in June 2025 in the matter of Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs.

1. As the parties agreed, when an impugned law is found to be invalid, that law is taken always to have been invalid, including at the time that any decision was made under that law.
2. Since subclauses 070.612A(a) and (d) of the Former Regulations were found to be invalid in YBFZ, they were invalid at the time of the Tribunal Decision.
3. It follows that the Tribunal (unwittingly) made an error - which informed its conclusions in respect of primary consideration 1 (in particular, the risk to the Australian community should the applicant commit further offences) and other consideration (a) (namely, the legal consequences of the decision) - by proceeding on the assumption that:

(a) subclauses 070.612A(a) and (d) were valid; and

(b) a decision to affirm the non-revocation of the permanent visa cancellation would result in the applicant remaining in the community on a bridging visa with monitoring and curfew conditions (see AJN23 at 594 [34]).

1. This is the case even though the Tribunal's error was made through no fault of its own. As the Full Court said in AJN23 at 593 [30] in relation to the Minister's understanding of the law based on Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (i.e. that if the appellant's visa was refused, he would be indefinitely detained until he was removed to another country):

... Although unknown, and unknowable, to the Minister at that time, that was an erroneous understanding of the law because (just over a month after the Minister's decision) Al-Kateb was re-opened and overruled in NZYQ.

1. The Minister submitted, and I agree, that the Tribunal's formulation of the relevant requirement under clause 070.612A - namely, the requirement that the Minister "consider whether it is reasonably necessary to impose" the relevant visa conditions - was simply an "introductory observation" that identified "the general subject matter to which the Minister was to turn his mind: it was not purporting to assay the precise effect of the clause, noting that it was not seized of any bridging visa decision-making".
2. Although the applicant was right to say that the clause required a positive state of mind about a negative stipulation (i.e. each condition had to be imposed unless the Minister was positively satisfied that it was not reasonably necessary to impose that condition), in my view the Tribunal did not misapprehend the nature of the test that was before the Minister for the purposes of imposing conditions on the bridging visa.
3. It follows that the Tribunal did not commit any error with respect to the State of Satisfaction issue.

The Tribunal's error with respect to the Invalid Bridging Visa Conditions issue was not a jurisdictional error

1. It is well-established, and the Minister did not dispute, that an executive decision-maker must correctly understand the meaning of the law under which they act as at the time of their decision. See R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430 (Latham CJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at 136 [34] (Kiefel CJ, Gageler and Keane JJ); Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at 35 [33] (Gageler and Keane JJ); and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; (2021) 285 FCR 667 at 681-682 [53] (Perram, Moshinsky and Thawley JJ).
2. Here, the Tribunal was seized with power under s 501CA of the Act to revoke the cancellation of the applicant's permanent visa (which would reinstate the permanent visa) or not to revoke that cancellation (which would result in the applicant holding the bridging visa).
3. As part of its exercise of the s 501CA power, it was appropriate for the Tribunal to consider, and predict the relevance of, the various conditions that were anticipated to apply to the bridging visa (such as the requirement for the applicant to wear an ankle bracelet and comply with curfew conditions). Although the bridging visa (and its conditions) played a role in the Tribunal's analysis as to whether it should reinstitute the permanent visa, the Tribunal was not acting under clause 070.612A. It follows that the Tribunal did not misunderstand the meaning of the law under which it acted as at the time of its decision.
4. In any event:

(a) the Tribunal attributed only "marginal" significance to the bridging visa conditions (being the subject matter of the error) in its broader revocation analysis under s 501CA (see TD at [100]); and

(b) those bridging visa conditions were always susceptible to change - either through the exercise of Ministerial discretion from time to time or through the ordinary expiry of such conditions after 12 months from the date of their imposition.

1. In those circumstances, there was no jurisdictional error.
2. Even if it were a jurisdictional error, it was not material, for reasons to which I now turn.

Any jurisdictional error with respect to the Invalid Bridging Visa Conditions issue was not material to the Tribunal Decision

1. The Minister submitted, and I accept, that even if the Tribunal's error is found to have been a jurisdictional error, it was not material to the outcome of the Tribunal Decision.
2. As I have explained, in the context of its analysis of primary consideration 1, the Tribunal attributed only "marginal weight" to the role of the bridging visa conditions in lowering the risk posed by the applicant to the Australian community (compared to the risk that would otherwise exist if he had a permanent visa).
3. As the Tribunal stated at [100] of its reasons:

[T]he nigh-time curfew adds a level of structure and consistency that the Applicant did not previously have in the wider community. The monitoring device will be a constant reminder to the Applicant that he is being monitored, which could prompt him to think twice if he is tempted to do the wrong thing. The curfew and monitoring device are potential supports for him. Accordingly, I am satisfied that there is likely to be a lower risk of reoffending if the Applicant has a BVR than if he has his [permanent] visa back, although I cannot speculate about what the differential is. On this basis, I allocate only marginal weight to this factor.

(Emphasis added.)

1. Contrary to the applicant's contentions, it does not follow from the fact that primary consideration 1 weighed heavily against revoking the cancellation of the applicant's permanent visa (see TD at [101]) that the bridging visa conditions were "centrally relevant" to the decision-making process.
2. The Tribunal also correctly recognised at [102] that the exercise of comparing the risk posed to the Australian community under each type of visa could give the false impression that the applicant, under certain conditions, posed less of a risk under primary consideration 1 than he actually did. As the Tribunal noted, underestimating the danger posed by a non-citizen who has shown consistent disregard for the law works against primary consideration 1 and the protection of the Australian community.
3. I thus reject the contention that the bridging visa conditions were of "sufficient significance to the ultimate decision" or that the error in relation to them was "on a point of real significance to the ultimate decision". Compare AJN23 at 595 [44]-[45]. Similarly, the purported jurisdictional error was not "fundamental" to the Tribunal Decision; it did not "underpin[]", have a "close connection" to, or "play[] an important role" in the decision. Compare CBW20 at [57] and [59], cited in AJN23 at 595 [45].
4. The Tribunal was also clear about the extent to which each consideration informed its ultimate decision. Having assigned only "marginal weight" to the bridging visa conditions (which factored into its analyses of primary consideration 1 and other consideration (a)), it concluded as follows (see TD at [122]):

I am now required to weigh all the Considerations in accordance with the Direction. Primary Considerations 1 and 5 weigh heavily against revocation of the cancellation of the visa. Primary Consideration 3 attracts moderate to heavy weigh[t] in favour of revocation, and Other Consideration (a) weighs moderately in favour of revocation. Therefore, there is more weight in favour of not revoking the cancellation of the Applicant's visa. There is not another reason to revoke the cancellation of the Applicant's visa.

1. In my view, the Tribunal would have reached the same decision even if the error as to the bridging visa conditions had not been made.
2. The applicant's submissions on materiality - which relied heavily on the passage from AJN23 at 597 [51] (set out at paragraph 64 above) - are inapposite in the present case, because the Tribunal in this case specified the precise weight to be given to each consideration and to the bridging visa conditions, undertook an overall balancing exercise and reached the conclusion that the permanent visa cancellation should not be revoked.
3. In that context, the Tribunal's assignment of "marginal weight" to the bridging visa conditions emphatically shows that those conditions were not "an important underpinning of the decision in relation to several elements". It follows that the Tribunal Decision cannot be said to have been "imbued" or "infused" with error. Compare AJN23 at 597 [49].
4. In the present case, there is no "improper speculation" in holding there to be no realistic possibility that the Tribunal Decision could have been different had it proceeded on the basis that subclauses 070.612A(1)(a) and (d) were invalid. Compare LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at 619 [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). In my view, it can be affirmatively concluded that the outcome would inevitably have been the same had the Tribunal's error not been made. Compare LPDT at 616 [16].
5. It follows that if there was any jurisdictional error in the Tribunal Decision, it was not material.

1. The application should be dismissed, with costs.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.