Vu v Minister for Immigration - Visa Cancellation Judicial Review

Original Word Document (121.4 KB) Federal Court of Australia

Vu v Minister for Immigration and Multicultural Affairs [2026] FCA 413

| File number(s): | NSD 303 of 2025 |
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| Judgment of: | SHARIFF J |
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| Date of judgment: | 10 April 2026 |
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| Catchwords: | MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) to affirm decision of delegate of the Minister not to revoke cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act) – whether Ministerial Direction exceeded Minister’s power under s 499 of the Act – whether Tribunal made an error of law in applying Ministerial Direction – whether Tribunal’s reasoning lacked a logical and coherent basis and was legally unreasonable – apprehended bias – where Tribunal constituted by same member as in previous hearing – whether a fair-minded lay observer might reasonably apprehend that the tribunal member might not bring an impartial mind to the resolution of the applicant’s application – no errors established – application dismissed with costs |
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| Legislation: | Administrative Appeals Tribunal Act 1975 (Cth) s 19A (repealed)

Administrative Review Tribunal Act 20 2 4 (Cth) s 37(1)

Migration Act 1958 (Cth) ss 496(1), 496(1A), 499, 499(1), 499(2), 499(2A), 501(1), 501(3A), 501(6)(a), 501(7)(c), 501CA(2), 501CA(3), 501CA(4)

Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA para 8.4(4)

Direction No. 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA para 8.4(4)(f)

Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 8.1, 8.5 |
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| Cases cited: | Amarjit Singh v Minister for Immigration & Multicultural Affairs [1997] FCA 809

Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426

AZAAA v Minister for Immigration and Citizenship [2009] FCA 554; 177 FCR 363

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283

Charisteas v Charisteas [2021] HCA 29; 273 CLR 289

Comcare v Broadhurst [2011] FCAFC 39; 192 FCR 497

Director of Public Prosecutions (DPP) v Smith [2024] HCA 32; 419 ALR 212

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250

FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454

Industry Research and Development Board v IMT Ltd [2001] FCA 85; ATR 275

Isbester v Knox City Council [2015] HCA 20; 255 CLR 135

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461

Johnson v Johnson [2000] HCA 48; 201 CLR 488

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; 305 FCR 26

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; 412 ALR 502

Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628

Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507

Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; 297 FCR 662

MZZXM v Minister for Immigration and Border Protection [2016] FCA 405

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264

NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378

Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171; 301 FCR 484

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; 296 FCR 582

Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256

SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8

SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; 200 FCR 223

Vu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 94

Webb v The Queen [1994] HCA 30; 181 CLR 41

Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 89 |
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| Date of hearing: | 17 December 2025 |
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| Counsel for the Applicant: | Mr O Jones SC |
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| Solicitor for the Applicant: | Ray Turner Immigration Lawyers |
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| Counsel for the First Respondent: | Mr B Kaplan SC |
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| Solicitor for the First Respondent: | Minter Ellison |
ORDERS

| | | NSD 303 of 2025 |
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| BETWEEN: | LONG HAI VU

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | SHARIFF J |
| DATE OF ORDER: | 10 APRIL 2026 |
THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the proceeding as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1. INTRODUCTION

1 The applicant is a citizen of Vietnam. His visa was cancelled after he was convicted of serious criminal offences for which he was sentenced to a substantial term of imprisonment. The present proceedings arise from his subsequent application to seek the revocation of the cancellation of his visa.

2 By his present application before the Court, the applicant seeks judicial review of a decision made by the Administrative Review Tribunal (the Tribunal) on 5 February 2025. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s visa: see Vu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 94. The applicant says that the Tribunal’s decision should be quashed.

3 The applicant first arrived in Australia on 22 December 1999 as the holder of a Child (Migrant) (Class AH) (Subclass 101) visa. Since that time, the applicant has held various visas including a Class BB Subclass 155 Five Year Resident Return visa, which is the visa that came to be cancelled. That visa was cancelled because on 30 October 2020, the applicant was convicted and sentenced in the District Court of New South Wales in respect of several offences, including the manufacture and supply of a commercial quantity of prohibited drugs and the supply of firearms (including a pistol and shortened firearm). The District Court (Hanley SC DCJ) sentenced the applicant to a single, aggregate term of imprisonment of eight years, commencing on 16 December 2017 and expiring on 15 December 2025. This was not the first time that the applicant had been convicted of criminal offences or spent time in custody. He has had a history of prior drug-related offending.

4 The applicant’s conviction led to him being notified that his visa had been cancelled pursuant to the mandatory cancellation power contained in s 501(3A) of the Migration Act 1958 (Cth) (Act) on the basis that the decision-maker was satisfied that he had a substantial criminal record by reason of s 501(7)(c) and, as a result, did not pass the character test under s 501(6)(a) of that Act (Cancellation Decision). Subsequently, on 19 June 2023, a delegate of the Minister determined that the applicant did not pass the character test and was not satisfied that there was another reason why the Cancellation Decision should be revoked for the purpose of s 501CA(4) of the Act (Non-Revocation Decision).

5 The applicant then applied to the predecessor of the Tribunal (then the Administrative Appeals Tribunal) for a review of the Non-Revocation Decision. His application was unsuccessful, and the Tribunal affirmed the decision on 13 September 2023 (the First Tribunal Decision). However, the First Tribunal Decision was subsequently quashed by orders made by Lee J of this Court on 29 February 2024. That came about by reason of a concession made by the Minister that the Tribunal member in the First Tribunal Decision had failed to comply with a mandatory consideration under paragraph 8.4(4)(f) of Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, in that the member had not considered the known views of the child when assessing the best interests of minor children in Australia.

6 The matter was remitted to the Tribunal. On remittal, the Tribunal was constituted by the same member who had made the First Tribunal Decision. The applicant requested that the Tribunal be reconstituted by a different member, however, this request was rejected on 16 July 2024.

7 The applicant’s application for review was then heard again before the same member of the Tribunal on 18, 19 and 28 November 2024. On 5 February 2025, the Tribunal affirmed the Non-Revocation Decision once more (Second Tribunal Decision).

8 It is the Second Tribunal Decision that is the subject of the present application. The applicant contends that:

(a) the Tribunal erred in finding that “Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ” (the Direction or Direction 110) was a valid exercise of the power contained in s 499 of the Act (Ground 1);

(b) the Tribunal made an error of law and/or reasoned in a legally unreasonable way in concluding that Direction 110 was to be treated as binding on it, rather than constituting guidance only (Ground 2);

(c) the findings of the Tribunal lacked a logical and coherent basis and/or were legally unreasonable (Ground 3); and

(d) the Tribunal’s decision is affected by an apprehension of bias (Ground 4).

9 For the reasons that follow, the application should be dismissed.

1. GROUND 1

10 By Ground 1, the applicant contends that Direction 110 is beyond power and invalid because it purports to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) of the Act can be exercised such that it is inconsistent with that subsection and contrary to s 499(2) of the Act.

11 In order to contextualise the applicant’s contentions, it is necessary to refer in brief to the relevant statutory provisions. It was not in dispute that the Minister was required to cancel the applicant’s visa by reason of ss 501(3A), 501(6)(a), and 501(7)(c) of the Act. The focal point of the present application is the Minister’s power to revoke a decision made under s 501(3A). This power is conferred by s 501CA(4) and is conditioned by ss 501CA(2) and (3) which provide that, as soon as practicable after making a decision to cancel a visa under s 501(3A), the Minister must give the visa holder written notice of the decision, particulars of the information that led to the making of the decision, and an opportunity to make representations within a prescribed period. Once these requirements have been observed, the Minister may exercise the power in s 501CA(4) which provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

12 As with the other powers conferred on the Minister by the Act, s 496(1) permits the Minister to delegate this power to another person. Where the power is exercised by a delegate, s 496(1A) makes clear that the delegate is subject to directions of the Minister. The Minister’s power to give written directions, the limits of the power, and the obligation to comply with such directions are respectively set out in ss 499(1), (2), and (2A) of the Act in the following terms:

499 Minister may give directions

(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)     the performance of those functions; or

(b)     the exercise of those powers.

…

(2)     Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

13 Relevantly, paragraph 8.5 of Direction 110 provides as follows:

8.5. Expectations of the Australian Community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a)     acts of family violence; or

b)     causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d)     commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e)     involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f)     worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community

(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

14 The applicant developed his argument as to the invalidity of Direction 110 in the following way.

15 First, it was submitted that the power in s 501CA(4) does not prescribe any matters that must or must not be taken into account when forming the state of satisfaction necessary to exercise the power under that subsection. As the subsection does not prescribe mandatory relevant considerations and does not proscribe irrelevant considerations, it was submitted that the matters to be considered, and the weight to be given to them, was for the decision-maker to determine: relying upon Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; 412 ALR 502 at 40 and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at 74.

16 Second, the applicant emphasised that s 499(2) makes plain that the Minister’s power to give written directions under s 499(1) does not extend to the giving of directions that are inconsistent with the Act. It was submitted that a purported direction that required a decision-maker to reach a particular outcome or give specific weight to a particular matter without consideration of the circumstances of the individual case would be inconsistent with the power in s 501CA(4): relying on Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; 296 FCR 582 at 23; Price v Minister for Immigration, Citizenship a nd Multicultural Affairs [2023] FCAFC 171; 301 FCR 484 at 71; Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667 at 64.

17 Third, the applicant submitted that paragraph 8.5 of Direction 110 purports to direct the decision-maker as to the content and weight to be given to a primary consideration, namely, the expectations of the Australian community. It was submitted that under paragraph 8.5, a decision-maker is directed (a) that the Australian community expects that a non-citizen who has engaged in a serious breach of law will not be allowed to enter or remain in Australia; (b) that the Australian community expects that a visa should be refused or cancelled where the non-citizen exhibits certain “character concerns”; (c) that this approach must be applied regardless of any risk of physical harm that the non-citizen may cause; and (d) that the decision-maker must proceed on the basis of the Government’s view about the expectations of the Australian community, without independently assessing the community’s expectations in the particular case.

18 The applicant submitted that the Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 held that a paragraph such as 8.5 of Direction 110 requires the decision-maker to adopt the government’s understanding of the Australian community’s expectation that the person’s visa will be refused or cancelled, and prohibits the decision-maker from carrying out his or her own assessment of community expectations: at [61], [66]–[67], [72], 75; at [86], [97], [101], [103]–104; see also Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; 297 FCR 662 at 40. It was submitted that the relevant consideration would always weigh against an applicant: citing YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at 76. It was submitted that this was the case even where the ascertainable community expectations are “quite different” from that mandated by the Direction (citing FYBR at 91) and “whether or not there is any objective basis” for the understanding mandated by the Direction (citing YNQY at [76]).

19 Fourth, the applicant submitted that it followed that Direction 110 is beyond power and invalid, or contrary to the proper function of a direction made under s 499(1), as articulated in Singh and Price.

20 It was submitted that the point raised by the applicant was not a new one and, although it had not previously arisen for determination, it had been canvassed in several authorities, including Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at 78. Specific attention was drawn to the observation made by Mortimer J in Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [43] as follows:

Nor was it argued that the content of this Direction engaged the prohibition or limit in s 499(2). The Direction does stipulate that certain matters are to be "mandatory considerations" which a decision-maker must take into account. A direction by the Minister to a delegate, or to the Tribunal, that a consideration must be taken into account in exercising the power under s 501 of the Migration Act, may well be inconsistent with the Act if the scope, subject matter and purpose of s 501, properly construed, do not render the consideration a mandatory one. In other words, the operation of s 499(2), and, no doubt, general principles of interpretation, mean that the Minister cannot by a direction transform a consideration into a mandatory one if the Migration Act does not otherwise make it so. Again, these matters were not the subject of argument in this proceeding and their resolution should await an appropriate case.

21 The applicant also drew attention to the observation made by Stewart J in FYBR at [90] that if a direction - via the consideration of “community expectations” or otherwise - purported to dictate the outcome of the application, then, that would be inconsistent with the process of decision-making under the Act and thus invalid. This observation was said to have been endorsed in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; 305 FCR 26 at [105]-107. The applicant also relied on the statement in Kumar at [42] that, “[t]he Minister cannot, by a direction made under s 499, fetter the exercise of the power conferred by s 501(1) of the [Act]”. The applicant submitted that paragraph 8.5 of Direction 110 was more than only a guide but mandatorily required a decision-maker to consider a relevant fact in a particular way so as to exclude its own analysis on that topic (as to community expectations).

22 I do not accept the applicant’s arguments.

23 There is a distinction between, on the one hand, the content of a direction that directs a decision-maker to reach a particular decision or compels specific weight to be given to a matter, and, on the other hand, a direction that directs the decision-maker as to the matters that must be considered in making the ultimate decision. In relation to the former, a direction given under s 499(1) of the Act cannot require a decision-maker exercising power under, relevantly, s 501CA(4) either “to reach a particular outcome, or compel specific weight to be given to a particular matter”: Singh at [23] and 81; Jagroop at [57] and 79. However, it does not follow that a direction given under s 499 of the Act cannot guide a decision-maker as to the matters to consider or the content of those matters in making an assessment as to the appropriate decision to be made in the exercise of the power under s 501CA(4).

24 These distinctions were recognised (though not in express terms) in the reasoning of the Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 in relation to a predecessor to paragraph 8.5(4) of Direction 110 (being paragraph 8.4(4) of Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA). There, Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ explained at [51]-[52] that:

…para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government’s views as set out in para 8.4 “without independently assessing the community’s expectations in the particular case”.

Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90 ….

(Emphasis added.)

25 What these passages make plain is that the Direction has the effect of identifying the expectations of the Australian community to which the decision-maker must have regard in making their decision. The Australian Government has made it clear to decision-makers what it considers Australian community expectations to be and that the relevant decision-maker must apply those expectations as stipulated. That is not the same thing as directing or dictating the weight to be given to those expectations (as expressed in the Direction) or directing the decision-maker as to the outcome of the ultimate decision.

26 Importantly, the Direction does not state that the consideration in paragraph 8.5 is to dictate the outcome. Nor does it dictate the weight or relative weight to be given to the expectations of the Australian community amongst other considerations.

27 Whilst the effect of paragraph 8.5(4) of Direction 110 is that a decision-maker is not at liberty to divine their own view as to the expectations of the Australian community, that does not involve an interference with the decision-maker’s exercise of discretion as to the weight to be given to that consideration or to the outcome in any given case. This is entirely consistent with the decision of Charlesworth J in FYBR at [76]-[77], [79] and Stewart J in the same decision at [102]-[103], [105]-[106]. As Stewart J stated at [103]-[106]:

The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

It follows from the above that I am essentially, and respectfully, in agreement with Robertson J in Uelese at [64], Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76], Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [37]–[38] and [47], and the primary judge at [23]–[27]. I also respectfully agree with Bromwich J in Afu v Minister for Home Affairs [2018] FCA 1311 at [85] as understood by the primary judge (at [33]), ie it is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65.

The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”. That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).

The appellant relied heavily on cl 8(3) as dictating that each consideration, and hence also the expectations of the Australian community, can weigh in favour of or against the refusal of the visa. That approach gives that clause too much work to do in the light of the textual and contextual reasons to construe cl 11.3(1) as necessarily weighing, to some degree, against the visa applicant. Textually, cl 8(3) is capable of making perfect sense as saying that primary and other considerations may weigh in favour of or against refusal of a visa, rather than each and every primary and other consideration may weigh both ways.

28 The same reasoning applies to paragraph 8.5 of Direction 110.

29 For these reasons, I do not accept that paragraph 8.5 of Direction 110 directs a decision-maker as to the weight to be given to the community’s expectations or as to a particular outcome in the exercise of his or her discretion in a given case. As a result, I do not accept that Direction 110 is beyond power and invalid.

30 It follows that Ground 1 should be rejected.

1. GROUND 2

31 By Ground 2, the applicant contended that the Tribunal made an error of law in not treating Direction 110 as mere guidance and by instead applying it strictly and without consideration as to whether it was appropriate in the particular circumstances of his case.

32 However, the applicant accepted that the Court was bound to follow the Full Court’s judgment in FYBR and conceded that the Tribunal’s approach to determining his application for review of the Non-Revocation Decision was consistent with FYBR. On that basis, the applicant further accepted that Ground 2 should be dismissed at this stage and submitted that the Court need not consider the legal merits of his application.

33 The Minister submitted that Ground 2 should be dismissed on the basis of the applicant’s concession, but further submitted that the applicant’s submission was also foreclosed by the decision of the High Court in Ismail and Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378 (Gageler CJ, Edelman, Jagot JJ).

34 In the circumstances, Ground 2 must be dismissed.

1. GROUND 3

35 By Ground 3, the applicant contends that the Tribunal’s reasoning process in relation to his commitment to rehabilitation from his addictions lacked a logical and coherent basis and was therefore legally unreasonable. The focal point of Ground 3 is paragraph 80 of the Second Tribunal Decision, and, specifically, the emphasised portion of the paragraph extracted below:

It appears that Mr Vu’s addictions to drugs and gambling are in remission and have been for a number of years. However, the evidence does not support a finding he is committed to meaningful ongoing treatment, which is of concern given the nature of his offending and his extensive history of drug use.

(Emphasis added.)

36 The applicant submitted that the Tribunal’s conclusion that the evidence did not support a finding that the applicant was “committed to meaningful ongoing treatment” lacked an evident and intelligible justification and was illogical, irrational, or insufficient: citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 76; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 10, 82. It was further said, consistent with the Full Court’s observation in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 47, that an “intelligible justification” for the decision must lie within the reasons the decision-maker gave for the exercise of power: see also Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513 at [33]–35. The applicant submitted that the Tribunal’s reasons did not disclose an intelligible justification for the finding that he was not committed to meaningful ongoing treatment when the evidence was that his addictions were in remission.

37 To properly appreciate the Tribunal’s reasoning process, and to contextualise Mr Vu’s arguments about legal unreasonableness, it is helpful to first address the relevant passages of the Second Tribunal Decision. Relevantly, the Tribunal’s conclusion that Mr Vu was not “committed to meaningful ongoing treatment” was made in the course of considering the risk to the Australian community if Mr Vu were to commit further offences or engage in other serious conduct and, specifically, the likelihood of him committing such offences or engaging in such conduct. Consideration of this risk forms one part of the first primary consideration prescribed by paragraph 8.1 of Direction 110. For present purposes, paragraph 8.1.2(2)(b) provides:

8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

…

(2)     In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

…

(b)     the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i)     information and evidence on the risk of the non-citizen reoffending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(Emphasis added.)

38 The Tribunal’s reasoning in relation to paragraph 8.1.2(b) commenced at paragraph 74 and concluded at paragraph 83 of the Second Tribunal Decision as follows (with citations omitted):

The likelihood of Mr Vu engaging in further criminal or other serious conduct

1.     Mr Vu has expressed deep remorse for his offending and notes his drug use was a significant contributor. I acknowledge that when sentencing Mr Vu on 30 October 2020, Judge [Hanley SC] accepted that Mr Vu’s drug addiction may explain to some extent his susceptibility of committing offences of this kind and explain his behaviour.

2.     Mr Vu submits he is a changed man who has realised the consequences of his actions and taken steps to reform and rehabilitate himself. Mr Vu has provided steps he has taken to address his drug addiction including completion of the ‘ Intensive Drug and Alcohol Treatment Program ’, ‘ Real Understanding of Self-Help ’ and ‘ Criminal Conduct & Substance Abuse Treatment “Pathways” Program ’. He has also obtained a certificate in ‘ NEXUS: Planning your release ’ and completed Bible study courses. Mr Vu identifies protective factors that will reduce the risk of further drug use and reoffending including the support of his current partner Ms Nguyen, his four minor children, brother and Ms Shan. He notes that regular drug testing confirms he has not taken drugs since 2019.

3.     Mr Vu explained that he was in denial about his drug addiction for a long time, but now understands the extent to which he was addicted ice. In his report of 15 November 2017, psychologist Sam Borenstein recommended psychological treatment to address Mr Vu’s mood and prevent impulsive and compulsive defences. Psychiatrist Dr Gerald Chew also recommended psychological therapy in his report of 6 October 2020.

4.     Mr Vu claims to have seen a psychologist regularly while in prison. He gave evidence at the first hearing that seeing a psychologist would assist in his rehabilitation. He did not seek psychological support when he was most recently in the community because he has learnt he can talk to his partner and his mother. He says he understands the importance of reaching out for support and being open with his family.

5.     The Respondent contends that Mr Vu has sought to downplay his culpability for his offending and taken minimal ownership of his role in his offending for which he has been convicted. To this end, a pre-sentencing report of 5 August 2016 states that Mr Vu did not accept responsibility for his behaviour, did not display any regret for his actions or express any remorse.

79.    I accept that Mr Vu’s drug use has contributed to his offending and that he has made some efforts at rehabilitation in this regard. Mr Vu claims he last used illicit drugs in 2019 while in prison and regular drug testing in prison supports this assertion. A pre-sentencing report prepared July 2016 states that Mr Vu had a significant gambling addiction, losing between $5,000 and $10,000 at a time. It also notes that at that time Mr Vu had not completed an appropriate treatment program despite having an extensive history of methylamphetamine use. Mr Vu previously gave evidence he had been addicted to gambling but that he no longer gambles. In November 2017 Dr Borenstein reported that Mr Vu had a gambling addiction in remission.

80.    It appears that Mr Vu’s addictions to drugs and gambling are in remission and have been for a number of years. However, the evidence does not support a finding he is committed to meaningful ongoing treatment, which is of concern given the nature of his offending and his extensive history of drug use.

1.     The sentencing assessment report prepared on 3 June 2020 notes that Mr Vu had failed to follow directions in relation to counselling and used illicit drugs while under supervision in 2016/17. The report notes he was assessed as at a Medium to High risk of reoffending according to the ‘ Level of Service Inventory – Revised (LSI-R) ’. Based on the evidence, I accept that Mr Vu’s drug use and gambling addiction are currently in remission. However, it is of concern that he is not committed to ongoing psychological support.

2.     Mr Vu was assessed as a medium-high risk of reoffending in accordance with the Level of Service Inventory – Revised (LSI-R) in a pre-release report dated 12 September 2022. The report notes Mr Vu initially sought to minimise his role in the offending, but was more forthcoming about his involvement in more recent conversations. The officer writes that Mr Vu demonstrated insight into his index offences, and was taking ownership in his role around the drugs and sale of a weapon.

3.     Having regard to the evidence, including his rehabilitation, stated remorse and the protective factors Mr Vu has cited, I find there is a medium to high risk that Mr Vu may reoffend.

(Emphasis added.)

39 The applicant submitted that the basis for this conclusion at paragraph 80 was not apparent from the Tribunal’s reasons and lacked an evident justification in circumstances where:

(a) at paragraph 75, the Tribunal addressed the measures taken by Mr Vu in relation to his addiction, including courses he had completed and the regular drug testing he had undertaken;

(b) at paragraph 77, the Tribunal noted that Mr Vu had seen a psychologist regularly while in prison and that he had not sought further psychological support when most recently in the community because “he has learnt he can talk to his partner and his mother” and “understands the importance of reaching out for support and being open with his family”;

(c) at paragraph 79, the Tribunal accepted that Mr Vu had “made some efforts at rehabilitation” in relation to his drug use and that he had not used illicit drugs since 2019; and

(d) at paragraph 80, the Tribunal stated that it appeared that Mr Vu’s drug and gambling addictions “are in remission and have been for a number of years”.

40 It is important to focus on the factual context within which the Tribunal reasoned.

41 The applicant had been convicted of serious drug-related offences. There was evidence from a psychologist and a psychiatrist which recommended ongoing treatment. The Tribunal referred at paragraph 76 of the Second Tribunal Decision to the 15 November 2017 report of Sam Borenstein, a psychologist, who recommended “psychological treatment to address [the applicant]’s mood and prevent impulsive and compulsive defences”, and also referred to the 6 October 2020 report of Dr Gerald Chew, a psychiatrist, who recommended “psychological therapy”. Despite these recommendations, the applicant had only seen a psychologist regularly when in prison. He had not sought out any psychological support whilst in the community.

42 To further contextualise matters, it is important to recognise that the applicant was in prison from 16 December 2017 to 15 December 2022. Upon his release from criminal custody, the applicant was taken into immigration detention (as he was an unlawful non-citizen), where he remained for nine days before being released into the community. In February 2023, an officer in the Minister's department notified the applicant that the decision to cancel his visa remained valid, and that he did not hold a visa, following the enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth). The applicant remained in the community until at least June 2024, when he was detained on remand in criminal custody.

43 It followed that the applicant had been in the community for a substantial period without seeking any psychological support. Whilst the applicant’s explanation for failing to seek out such assistance was that he had learned to talk to and obtain support from his family, the Tribunal was assessing and measuring his commitment to clinical, as opposed to familial, support. The Tribunal concluded in the particular factual context that even though the applicant’s addictions were in remission, the “evidence” did not support that he was “committed to meaningful ongoing treatment” which was of concern given the nature of his offending and his extensive use of drugs. That conclusion did not lack an intelligible justification. The evidence indicated that the applicant would need ongoing psychological support and it further indicated that he had not sought such support despite being in the community for an extended period. In those circumstances, it was not unreasonable or illogical for the Tribunal to reason that the evidence did not support the finding that the applicant was “committed to meaningful ongoing treatment” or “ongoing psychological support”.

44 It follows that Ground 3 should be dismissed.

1. GROUND 4

45 By Ground 4, Mr Vu contends that the Second Tribunal Decision was affected or vitiated by apprehended bias.

46 It was common ground that the applicant bears the onus of establishing a reasonable apprehension of bias. It was also common ground that, to do so, the applicant had to prove that a “fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 6. As I return to below, there are at least two steps involved in the application of the test enunciated in Ebner: first, one must identify “what it is said might lead a [decision-maker] to decide a case other than on its legal and factual merits”; and second, there “must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: Ebner at 8. Where this is made out, the decision-maker is disqualified: Ebner at [6]. It has since been confirmed that there is a third step or final evaluative enquiry as to the reasonableness of the apprehension of bias, which I discuss below.

47 There was no dispute as to the core factual circumstances. In short, the First Tribunal Decision was adverse to the applicant; this decision was quashed because the Tribunal member failed to consider evidence about the known views relating to the best interests of minor children in Australia; and, the matter was remitted to the Tribunal which was constituted by the same member who again decided the application adversely to the applicant. It was accepted that on the second hearing, the Tribunal heard evidence again from the applicant and his witnesses. The applicant, his first wife, his current partner, and his mother all gave evidence at both hearings. It was also common ground that the Tribunal received and heard submissions from both parties in the second tribunal hearing.

48 It was not suggested by the applicant that there were any findings made in the First Tribunal Decision that were adverse to his credit or the credit of the witnesses called on his behalf. Rather, the applicant’s argument was that the fact that the same Tribunal member (who had earlier determined the matter adversely to the applicant) had again determined the matter on a second occasion was sufficient for there to be a reasonable apprehension of bias.

49 It was submitted that a reasonable apprehension of bias was manifested by the fact that the Tribunal reached essentially the same conclusions as to the merits of the applicant’s application for review. It was submitted by way of example that:

(a) the applicant contended that, having learnt from his past mistakes, the risk of his reoffending was negligible, but this was rejected by the Tribunal in the First Tribunal Decision at paragraph 92 and then again in the Second Tribunal Decision at paragraph 83;

(b) the applicant contended that he had made efforts at rehabilitation in relation to his drug addiction, but the Tribunal concluded in the First Tribunal Decision at paragraph 90 that the applicant had not engaged meaningfully with treatment services since leaving detention and reached the same conclusion in the Second Tribunal Decision at paragraph 80; and

(c) the applicant contended that the interests of his children in Australia weighed in favour of revocation, and even though the Tribunal accepted this in both the First Tribunal Decision at paragraph 115 and the Second Tribunal Decision at paragraph 129, the Tribunal member nevertheless held in both decisions that other factors outweighed this consideration.

50 The applicant submitted that having a decision-maker consider and determine an issue about which the decision-maker has already expressed a firm opinion – much less made a final determination – is inherently fraught with risk. In this regard, the applicant relied on the decisions of Lives e y v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 300 (Mason, Murphy, Brennan, Deane and Dawson JJ) and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at 139. The applicant acknowledged that these decisions involved curial rather than administrative decision-makers but submitted that the underlying principle was of ready application in the present context: citing Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at 181.

51 The applicant further submitted that, although not a matter of course, the Court had in previous cases determined it would be appropriate for the Tribunal or its counterparts to be reconstituted on a remitter involving determination of the same application. The applicant relied on the decision of Davies J (with whom Burchett J agreed) in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, where, having found that the tribunal had erred in its understanding of the relevant law, his Honour stated at 313-314:

I would allow the appeal. I would set aside the orders below and, in substitution therefor, I would order that the decision of the tribunal be set aside and that the matter be remitted to the Refugee Review Tribunal to be heard and decided again. Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind. However, that is so obvious a proposition, it need not be part of the formal order.

(Emphasis added.)

52 The applicant accepted that the decision of the Full Court in Eshetu was set aside by the High Court on appeal, but not on this point.

53 The applicant next relied on the decision of Murphy J in MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [109]-[122]. In MZZXM, Murphy J held that where a tribunal member had reached an adverse view of the applicant's claims in an earlier decision, a reasonable apprehension of bias arose in respect of the same member hearing and deciding the same application on a remittal. In coming to that conclusion, Murphy J relied on Davies J’s reasons in Eshetu and also on the decision of Mansfield J Amarjit Singh v Minister for Immigration & Multicultural Affairs [1997] FCA 809 (Unreported, 19 August 1997). In Amarjit Singh, Mansfield J referred to Davies J’s statement in Eshetu and stated at 13 that:

It is clear that a member of the Tribunal should not sit to hear a case if, in all the circumstances, the applicant might entertain a reasonable apprehension that that member might not bring an impartial and unprejudiced mind to the determination of the review. That is based upon the principle that justice should not only be done, but should manifestly be seen to be done.

54 During the course of oral submissions, Senior Counsel for the applicant submitted that the authorities establish that where a decision-maker has already made factual findings or undertaken an evaluative exercise and is called upon to do so again, there is a natural human tendency to arrive at the same conclusions: T16.31–33. It was submitted that this fact established that a “fair-minded lay observer might reasonably apprehend” in these circumstances that the Tribunal member “might not bring an impartial mind to the resolution” of the application.

55 The Minister submitted that there is no principle of law which requires an application for review remitted to “a merits review body” such as the Tribunal to be heard by a differently constituted Tribunal. It was submitted that the mere fact that the Tribunal on remitter is constituted by the same member cannot itself give rise to an apprehension of bias and something else needs to be shown by the party making that allegation. Reliance was placed on the statement made by Kirby J in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [123] that it is “not uncommon” for a court to direct a matter to be heard by a decision-maker differently constituted where “rehearing by the same decision-maker would be unlawful (where a decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice)” (original emphasis). It was submitted that a direction may be given for a matter to be heard by a different decision-maker where the previous decision-maker has made adverse credibility findings against a party, as in Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 at 269 (Brennan, Dawson, Toohey and Gaudron JJ) where findings had been made as to the “truthfulness” of the appellant.

56 The Minister further submitted that the judgment of Davies J in Eshetu in relation to the reconstitution of the Refugee Review Tribunal was strictly obiter given that Burchett J agreed with Davies J only as to the grounds for judicial review of the decision and said nothing about the reconstitution of that Tribunal on remitter. The Minister submitted that “what drove Davies J to observe that the Tribunal should be differently constituted on remitter was a lack of confidence that the review applicant would be afforded procedural fairness when the decision under challenge was found to be so unreasonable that no reasonable decision-maker could have arrived at it”. It was further submitted that Murphy J’s decision in MZZXM was distinguishable because it was one where the Tribunal member had previously made adverse credibility findings about the relevant applicant as made apparent at [2] where his Honour noted that the Tribunal had accepted some important parts of the appellant’s claims and evidence but had also made adverse findings about the credibility of other parts of his evidence.

57 The Minister further submitted that the applicant’s contentions would, if accepted, require the reconstitution of the Tribunal on every matter remitted to it and would thereby operate as a fetter on the exercise of the discretion conferred on the President of the Tribunal by s 19A of the (now repealed) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as to how the Tribunal should be constituted in a particular matter (including on remitter). That section is relevantly indistinguishable from s 37(1) of the Administrative Review Tribunal Act 20 2 4 (Cth) (ART Act). It was submitted that in every case where a decision is made under s 501CA(4) of the Act, an application to this Court made by an applicant will involve a situation where the Tribunal has decided not to revoke a decision to cancel a visa, which will necessarily involve findings adverse to a review applicant. It was submitted that something more than this is required to establish an apprehension of bias and that the touchstone for constituting the Tribunal differently on remitter must, therefore, be something other than that the Tribunal has made findings on the issues falling for determination.

58 I am not satisfied a reasonable apprehension of bias has been established in the present case.

59 Although the parties addressed their submissions by reference to the principles articulated in Ebner as involving a two-step enquiry, it is necessary to observe that more recent statements indicate a further level of analysis is required. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148 at [38], Kiefel CJ and Gageler J stated that the criterion arising from Ebner logically entails:

(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

60 Consistently with the above, in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11], Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ, stated that there are two steps involved in assessing whether a reasonable apprehension of bias arises, and, once those steps are taken, an assessment is to be made as to the reasonableness of the apprehension of bias: see also Director of Public Prosecutions (DPP) v Smith [2024] HCA 32; 419 ALR 212 at [92]-95; SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at 60, 105, 130 and 173. Their Honours stated:

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits"; and, secondly, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(Emphasis added.)

61 These principles have application to administrative decision-making. An apprehension of bias will arise if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; 200 FCR 223 at 37.

62 The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at [28]–[29] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [14]–21. However, it must be recognised that it will be necessary to accommodate differences between court proceedings and other kinds of decision-making: Ebner at [4]; Jia Legeng at [99]-100. In Ex parte H, Gleeson CJ, and Gaudron and Gummow JJ observed at [27] that, “There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private”. Their Honours stated at [28]–[29]:

Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account…

63 Similar observations were made in Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [20]-23 and at 57.

64 Underpinning the apprehension of bias principle is the requirement that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ), cited in Webb v The Queen [1994] HCA 30; 181 CLR 41 at 47 (Mason CJ and McHugh J); see also Ebner at [6]. As stated by Heydon, Kiefel and Bell JJ in British American Tobacco at [139]:

It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.

(Original emphasis.)

65 However, the fair-minded lay observer is not assumed to be entirely ignorant of the law or its processes. The “fictional observer” is not to be “assumed to have a detailed knowledge of the law”, but “the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 13. That includes the observer being aware of the relevant legal, statutory and factual context: see eg SunshineLoans at 40, 69, 146 and 178. That is even more so the case in the context of administrative decision-making. In Isbester, the plurality stated at [23]:

How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

(Emphasis added.)

66 Viewed by reference to these principles, it must be accepted that the outcome of the application of the test as to reasonable apprehension of bias will be fact dependent. There is no general rule of law or principle that requires the Tribunal to be reconstituted on a remitter. Generally, and absent any express order of the Court, the constitution of the Tribunal under the AAT Act was a matter for the President of that Tribunal: s 19A of the AAT Act. That remains the case under s 37(1) of the ART Act. This general position accords with the approach taken by the Court when making orders to remit matters to an administrative tribunal as explained below.

67 In NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118 , Flick J observed at [39] that ordinarily when a decision is quashed, “justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing”: citing Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43 (Davies and Foster JJ) and Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427 (Mansfield J). His Honour further observed that the “usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed”: citing Industry Research and Development Board v IMT Ltd [2001] FCA 85; ATR 275 at 40.

68 Subsequently, in AZAAA v Minister for Immigration and Citizenship [2009] FCA 554; 177 FCR 363, Mansfield J (after referring to Flick J’s decision in NBMB) stated at [35]:

There may be reasons giving rise to jurisdictional error where the justice of the case clearly requires the appointment of another member of the tribunal to conduct the review, such as jurisdictional error where the member of the tribunal had formed an adverse view about the credit of the visa applicant or where the jurisdictional error is based upon a finding of bias in the member making the initial decision.

69 However, there is no inflexible rule.

70 As Tracey and Flick JJ later stated in Comcare v Broadhurst [2011] FCAFC 39; 192 FCR 497 at [89]-[90], there may be circumstances in which it is appropriate for the Tribunal to be differently constituted if justice is to be seen to be done: citing, amongst other decisions, both NBMB and Northern NSW FM. Tracey and Flick JJ proceeded to state at [91]-[95]:

On other occasions, there may be circumstances where there is no reason why the Tribunal whose decision is under appeal should be constituted in any different manner when an appeal is allowed and the matter remitted to it for further consideration. Indeed, in some circumstances it may well be convenient for the Tribunal to remain as previously constituted to avoid unnecessary time and expense being incurred. In Jordan v Australian Postal Corporation [2007] FCA 2028 at [49], 99 ALD 303 at 314, Buchanan J declined to make a direction that the Tribunal be reconstituted and said that he saw “no reason to intrude upon the discretion of the President of the AAT”.

On yet other occasions, the Tribunal as originally constituted may not be able to hear a matter remitted to it by reason of (for example) the expiration of the appointment of a Tribunal member: eg, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 at [68], 179 FCR 554 at 567. It was there said that “[i]t should be left to the Tribunal to determine how it should be reconstituted and it should be left to the Tribunal to determine how it should proceed”.

In the absence of an express order, s 20B of the Administrative Appeals Tribunal Act provides that it is the President of the Tribunal who “may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding”.

In many cases it may well be the appropriate course to simply allow an appeal and remit the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate pursuant to s 20B. The power, however, of this court to make orders or give directions as to the future constitution of the Tribunal when an appeal has been allowed has not been questioned: cf. Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518. The manner in which that power should be exercised, however, is to be resolved by reference to the facts and circumstances of each individual appeal. The power, it is respectfully considered, should not be more confined than that. The exercise of the power should not be approached with any inclination that it should “usually” be exercised in one manner rather than another. Whether any specific direction or order should be made by this Court on appeal as to the constitution of the Tribunal, or whether the constitution of the Tribunal should be left for determination by the President, should not be constrained by any pre-determined formulae or by any attempt to characterise those factors where one order rather than another may be more appropriate.

The present proceeding is one in which it is manifestly appropriate to simply make an order remitting the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate. To the extent that it may assist the President, it may be observed that there is no apparent reason that would warrant the Tribunal being differently constituted; indeed, there seems to be every reason why the Tribunal should remain as it was originally constituted.

(Emphasis added.)

71 Viewed within the context of these general principles, I do not regard the decisions in Eshetu, Amarjit Singh or MZZXM as laying down a rule of universal application as to the way a tribunal is to be constituted on a remitter. The question of remitter does not appear to have been fully considered by all members of the Full Court in Eshetu such that it is not possible to draw from that decision any principle of general application. The facts considered by Mansfield J in Amarjit Singh involved the relevant tribunal member having earlier found that the applicant for a protection visa did not have a well-founded fear of persecution, which makes it different to the present case. The decision of Murphy J in MZZXM was one where the Tribunal member had earlier rejected the credibility of parts of the review applicant’s claims and evidence, which also makes that decision different to the present case.

72 In any event, the question raised in the present case is not how the Tribunal should have been constituted on the remitter, but whether the constitution of the Tribunal by the same member who decided the First Tribunal Decision gave rise to a reasonable apprehension of bias. This is a related but ultimately different question. To answer that question, it is necessary to consider the specific facts by reference to the three-stepped test (or the application of the anterior two-stepped test and then the evaluative enquiry as to reasonableness).

73 The first step requires identification of the factor which it is said might have led the Tribunal member in the present case to determine the application other than on its legal and factual merits. I am satisfied that the relevant factor was the prior determination by the Tribunal member of the applicant’s application for review of the Non-Revocation Decision adversely to him in the First Tribunal Decision. I am satisfied that the prior determination of the applicant’s application for review might have led the Tribunal member not to determine the applicant’s application on its merits.

74 The second step requires there to be a logical connection between the identified factor and the apprehended deviation from a determination of the instant case on its merits. I am satisfied that the necessary logical connection existed by reason of the fact that the same Tribunal member was being called upon to determine the application for review. I am satisfied that this fact might have given rise to an apprehension in the mind of a fair-minded lay observer that the Tribunal member might not determine the applicant’s application for review of the Non-Revocation Decision on its merits. That is so because a fair-mind lay observer might apprehend that the Tribunal member, having already decided the outcome of the applicant’s application for review on one occasion, might not bring an impartial mind to bear upon the determination of the same application on a second occasion.

75 However, in relation to the third step of the test (or what has also been described as the final evaluative enquiry), I am not satisfied as to the reasonableness of an apprehension of bias arising on the facts of this case. That is so for the following reasons.

76 As noted above, the hypothetical fair-minded observer is to be taken to be aware of the nature of the relevant decision-making process and the context in which it was made as well as to have knowledge of the circumstances leading to the relevant decision. The essential issue raised here is one of an apprehension of pre-determination or pre-judgment by reason of the Tribunal member having determined the matter adversely to the applicant in the First Tribunal Decision. In terms, what this raises is the reasonableness of the apprehension that the state of mind of the Tribunal member, as the decision-maker, was “one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Jia Legeng at 72. Put in another way, is it a reasonable apprehension that the Tribunal member might determine the matter “without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case”: Jia Legeng at 185.

77 In assessing the reasonableness of such an apprehension, the relevant consideration is not whether the decision-maker has “ in fact prejudged an issue” or to “ask whether the reasons for judgment delivered” somehow “confirm, enhance or diminish the existence of a reasonable apprehension of bias”: see Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at 67. Rather, what is required is “an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided”: Michael Wilson at [67]. However, as Rares and Jagot JJ stated in SZQHH at 42:

…the way in which a decision-maker may properly go about his or her task and what kind or degree of neutrality, if any, is to be expected of him or her will be relevant considerations in evaluating how and in what way the rules relating to apprehension of bias will be applied in a particular situation…

78 This statement has application in the present case to an assessment of the reasonableness of the apprehension in the particular statutory context and in circumstances where the Tribunal member came to hear and determine the application on a second occasion.

79 Relevant to the legal and factual context is that the Tribunal was exercising jurisdiction under the AAT Act conferred upon it to review the Non-Revocation Decision for the purpose of s 501CA(4) of the Act. When reviewing the decision, the task of the Tribunal was to stand in the shoes of the Minister or delegate and to make the correct or preferable decision on review: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at 51; Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [14]-15. That required the Tribunal “to determine for itself on the material before it” the decision which it considered should be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review: Miller at [14]. Necessarily, the Tribunal was required to make that assessment as at the time of the review, taking into account the evidence and submissions it received and bearing in mind the application of Direction 110.

80 The fictional lay observer is unlikely to know the minutiae of the applicable legislative provisions, but (consistent with the authorities) is taken to have knowledge of the relevant legal context, which would include knowing that the task before the Tribunal member was to conduct a review of the Non-Revocation Decision on the merits, guided by the considerations in Direction 110. It is reasonable to think that the fictional observer would be aware that some of those considerations would compel similar or the same factual findings as in the First Tribunal Decision, such as in relation to the nature of the applicant’s offending and considerations as to the expectations of the Australian community.

81 Importantly, it is reasonable to further think that the fictional lay observer has knowledge that the First Tribunal Decision was quashed on the narrow basis that the Tribunal member had failed to consider the known views of a child. Further still, in my view, the lay observer would know that the effect of the quashing of the First Tribunal Decision was that it was no decision at all. The Tribunal was required to do over that which it had done before. This is particularly so given that the lay observer would know that in rejecting the application made by the applicant that the Tribunal member should be disqualified, the Tribunal member said:

[The applicant’s solicitor] argues that if it is heard again by the same member, it may lead to a finding of apprehended bias. He argues that the seriousness of the jurisdictional error is such that it may lead to a well-informed observer to reasonably believe the question of apprehended bias may arise. Now, the Minister is, in my view, correct to observe that I do not have the power to determine how the tribunal is constituted. That power lies with the President or the delegated members. In any event, the authority established by the courts sets out a two-part test for apprehended bias that extends beyond whether a question of real or apprehended bias may arise.

…

As you know, the role of the tribunal on remittal is to consider the matter afresh. The representations made on behalf of the applicant do not provide a reason why the tribunal would be unable to consider the matter afresh. And in particular, evidence regarding the known views of the child as required in the direction.

(Emphasis added.)

82 The fact that the Tribunal member stated that the role of the Tribunal on remittal was to consider the matter afresh is consistent with the objective facts that the Tribunal member did, in fact, consider the matter afresh. It would be known to the lay observer that the Tribunal member heard and received evidence and submissions afresh, instead of relying upon the evidence and submissions from the earlier Tribunal hearing. The Tribunal did not proceed on the basis that it did not need to receive and hear evidence and submissions afresh.

83 The fact that the Tribunal member made it clear that the matter would be considered afresh and then proceeded to do so are objective matters relevant to the enquiry and evaluation of reasonableness. It is also relevant that the nature of the jurisdictional error that led to the quashing of the First Tribunal Decision related to a confined failure to take into account or address views relating to the best interests of affected children.

84 In my view, these are matters that would have made it clear to the fair-minded lay observer that the Tribunal would not be relying upon the earlier evidence or findings and would be approaching the task afresh. These are all matters relevant to the statutory, legal and factual context of the decision.

85 In all these circumstances, I am not satisfied that it is reasonable to conclude, from the perspective of a fair-minded lay observer, that the Tribunal member might not bring an impartial mind to bear on the determination of the applicant’s application in the second hearing.

86 Further, in the events that came to pass, the Tribunal member’s approach does not suggest a failure to appreciate the nature of the task on the remittal. The approach taken by the Tribunal member (which is reinforced by the reasons in the Second Tribunal Decision) reveals a process of starting afresh, instead of a mere reliance on the findings or assessments made in the First Tribunal Decision. To the extent that the same or similar findings or conclusions were reached, they were reasoned on the basis of the evidence as received for the purpose of the second tribunal hearing. They reflect a process of reasoning arriving at the same or similar outcome, as opposed to pre-judgment.

87 Having regard to all of these matters, I am not satisfied as to the reasonableness of the asserted apprehension of bias that the Tribunal member might not determine the remitted application on its merits.

88 It follows that Ground 4 should be dismissed.

1. DISPOSITION

89 The application should be dismissed with costs.

| I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. |
Associate:

Dated: 10 April 2026

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