ZTBL v Minister for Immigration Full Court Appeal

Original Word Document (121.7 KB) FEDERAL COURT OF AUSTRALIA

ZTBL v Minister for Immigration and Citizenship [2026] FCAFC 48

| Appeal from: | ZTBL v Minister for Immigration and Citizenship [2025] FCA 652 |
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| File number(s): | VID 900 of 2025 |
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| Judgment of: | MARKOVIC, HESPE and NEEDHAM JJ |
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| Date of judgment: | 16 April 2026 |
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| Catchwords: | MIGRATION – appeal against primary judge’s decision dismissing application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of the appellant’s permanent visa – where appellant affected by NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 and would have remained in Australian community regardless of the Tribunal decision – where appellant held a Bridging (Removal Pending) (subclass 070) visa at time of the Tribunal decision with ‘curfew’ and ‘monitoring’ conditions imposed by the Minister pursuant to subclauses 070.612A(1)(a) and (d) of Schedule 2 to the Migration Regulations 1994 (Cth) – where Tribunal proceeded on the assumption that appellant’s bridging visa would include those same conditions if visa cancellation not revoked – where Tribunal evaluated the risk the appellant posed to the Australian community by comparing the risk were he to hold the permanent visa compared to the bridging visa with the curfew and monitoring conditions – where High Court subsequently found subclauses 070.612A(1)(a) and (d) to be invalid – whether Tribunal committed error of law – whether Tribunal committed jurisdictional error – whether error material to Tribunal’s decision |
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| Legislation: | Migration Act 1958 (Cth) ss 36, 499, 501, 501CA

Migration Regulations 1994 (Cth) Sch 2 cl 070.612A, Sch 8 |
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| Cases cited: | AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; (2024) 304 FCR 586

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651

DVRL v Minister for Immigration [2025] FCA 876

DXJL v Minister for Immigration [2025] FCA 1303

EGH19 v Commonwealth of Australia [2026] HCA 7

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133; (2022) 294 FCR 13

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; (2021) 285 FCR 667

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005

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

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57

Re Patterson; Ex Parte Taylor [2001] HCA 51; (2001) 207 CLR 391

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539

YBFZ v Minister for Immigration [2024] HCA 40; (2024) 99 ALJR 1

ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375

ZTBL v Minister for Immigration and Citizenship [2025] FCA 652 |
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| Division: | General Division |
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| Registry: | Victoria |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 91 |
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| Date of hearing: | 12 March 2026 |
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| Date of last submissions: | 2 April 2026 |
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| Counsel for the Appellant: | Mr N C Poynder |
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| Solicitor for the Appellant: | Victoria Legal Aid |
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| Counsel for the First Respondent: | Mr A Solomon-Bridge, with Ms L Brown |
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| Solicitor for the First Respondent: | Sparke Helmore Lawyers |
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| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice, save as to costs |
ORDERS

| | | VID 900 of 2025 |
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| BETWEEN: | ZTBL

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | MARKOVIC, HeSPE and NEEDHAM JJ |
| DATE OF ORDER: | 16 April 2026 |
THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from a judgment of the primary judge which dismissed the appellant’s application for judicial review: ZTBL v Minister for Immigration and Citizenship [2025] FCA 652 (primary judgment or PJ). The subject of the judicial review application was a decision of the former Administrative Appeals Tribunal (second respondent) which affirmed the decision of a delegate of the Minister for Immigration and Citizenship (first respondent) made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the appellant’s Class BF Transitional (Permanent) visa (BFT visa).

2 The appellant is a citizen of Iraq and a delegate of the Minister has made a finding that the appellant is a person to whom Australia owes protection obligations. The day prior to the Tribunal hearing, the Minister had granted the appellant a Bridging R (Removal Pending) (Subclass 070) visa (BVR), recognising that there was no real prospect of the appellant’s removal from Australia becoming practicable in the reasonably foreseeable future. The appellant’s BVR was issued with a number of conditions, including a curfew condition and monitoring condition imposed pursuant to subcll 070.612A(1)(a) and (d), respectively, of Sch 2 to the Migration Regulations 1994 (Cth).

3 At the time of the Tribunal’s decision, cl 070.612A(1) relevantly stated (emphasis added):

(1)    … each of the following conditions must be imposed by the Minister unless the Minister is satisfied that it is not reasonably necessary to impos e that condition for the protection of any part of the Australian community (including because of any other conditions imposed by or under another provision of this Division):

(a)    8621;

…

(d)    8620.

4 Visa conditions 8620 and 8621 are contained in Sch 8 to the Regulations, and relevantly stated at the time of the Tribunal’s decision:

8620    (1) The holder must, between 10 pm on one day and 6 am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days. [(curfew condition)]

…

8621    (1) The holder must wear a monitoring device at all times. [(monitoring condition)]

5 Little more than a month after the Tribunal’s decision, the High Court in YBFZ v Minister for Immigration [2024] HCA 40; (2024) 99 ALJR 1 found subcll 070.612A(1)(a) and (d) of Sch 2 to the Regulations to be invalid: at 87. The plurality held that the power vested in the executive government under subcll 070.612A(1)(a) and (d) of Sch 2 to the Regulations to impose the curfew and monitoring conditions on a non-citizen breached the constitutionally prescribed separation of powers: at [83].

6 The effect of the decision in YBFZ is that subcll 070.612A(1)(a) and (d) of Sch 2 to the Regulations as they stood at the time of the Tribunal’s decision were not valid, and were never valid.

7 The Tribunal’s decision proceeded on the assumption that the curfew and monitoring conditions were validly imposed on the appellant’s BVR.

8 The appellant’s notice of appeal dated 16 July 2025 contends (emphasis in original):

1.    An issue before the primary judge was whether there was jurisdictional error in the decision of the second respondent (the Tribunal) to affirm the first respondent’s refusal to revoke the cancellation of appellant’s visa under s 501(3A) of the Migration Act 1958 (Cth). The issue was whether, if the appellant remained in the community on a bridging visa, such bridging visa would be subject to two conditions under subclauses 070.612A(1)(a) and (d) in Schedule 2 to the Migration Regulations 1994 (Cth) (the regulations); namely:

• a “curfew” condition under clause 8620 in Schedule 8 to the regulations; and

• a “monitoring device” condition under clause 8621 in Schedule 8 to the regulations (the bridging visa conditions).

2.    The learned primary judge was in error when finding – at [80]-[82] – that the incorrect understanding of the Tribunal as to the state of satisfaction required to be formed before imposing the bridging visa conditions was simply an introductory observation and did not therefore amount to jurisdictional error.

3.    The learned primary judge was also in error when finding – at [85] – that the incorrect understanding of the Tribunal as to the validity of subclauses 070.612A(1)(a) and (d) and therefore the likelihood that the appellant would remain in the community subject to the bridging visa conditions did not amount to jurisdictional error.

4.    The learned primary judge was also in error when finding – at [89]-[100] – that even if the Tribunal’s errors were jurisdictional, they were not of sufficient significance to the ultimate decision and not therefore material to the decision.

9 In effect, the notice of appeal raises two grounds, related to two errors of law the appellant alleges the Tribunal to have made and which the appellant alleges amounted to jurisdictional errors.

10 Following the hearing of the appeal, the High Court delivered its judgment in EGH19 v Commonwealth of Australia [2026] HCA 7. The parties requested, and were granted, leave to file further written submissions (limited to 2 pages). The Court has considered those submissions.

11 For the following reasons, the appeal is to be dismissed.

BACKGROUND

12 The background to these proceedings, including the appellant’s personal history and the history of his immigration and criminal offending, were summarised by the primary judge at PJ [2]–[13] and are not disputed.

13 Very briefly, the appellant is a citizen of Iraq who arrived in Australia in 1992 at the age of 14 years holding a Global Special Humanitarian (Class XB) (subclass 202) visa. In 1994, he was granted the BFT visa. Between 1997 and 2020, the appellant committed over 350 criminal offences, which included property and dishonesty offences, repeated traffic offences, firearms and other weapons offences and two episodes of violent offending. He was sentenced to numerous periods of imprisonment.

14 The appellant’s BFT visa was previously cancelled on two occasions. Each of those cancellation decisions was revoked in 2016 and 2019, respectively.

15 On 31 July 2020, the appellant was sentenced by the Magistrates’ Court of Queensland to serve a total concurrent term of 12 months’ imprisonment for a number of offences. He was immediately released on parole for “time served”. Two months later, he committed a burglary, a serious assault and an armed robbery. His parole was suspended, and he was returned to custody to serve the remainder of his 12-month sentence.

16 On 30 June 2021, a delegate of the Minister mandatorily cancelled the appellant’s visa under s 501(3A) of the Migration Act on the basis that he did not pass the character test provided for in s 501(6) because he had been sentenced to a term of imprisonment of 12 months or more and he was serving a full-time custodial sentence: ss 501(6)(a) and (7)(d) (cancellation decision). On 20 July 2021, the appellant requested the revocation of the visa cancellation.

17 On 21 October 2022, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision (delegate’s decision).

18 On 23 October 2022, the appellant lodged an application for review of the delegate’s decision in the Tribunal. On 13 January 2023, the Tribunal affirmed the delegate’s decision. On 9 April 2024, this decision of the Tribunal was set aside by consent orders of this Court, and the matter was remitted to the Tribunal for redetermination according to law.

19 On 5 August 2024, a protection visa application that had been made by the appellant was refused on character grounds by a delegate of the Minister because he did not satisfy s 36(1C) of the Migration Act, although the appellant was found to be a person to whom Australia owed protection obligations.

20 Also on 5 August 2024, owing to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 (and the protection finding just mentioned precluding return of the appellant to Iraq), the appellant was granted a BVR with various conditions including the curfew and monitoring conditions, and he was released from detention into the Australian community. The Tribunal heard the remitted review application the following two days on 6 and 7 August 2024.

21 On 23 September 2024, the reconstituted Tribunal affirmed the delegate’s decision not to revoke the cancellation of the visa (the Tribunal ’s d ecision), with its reasons published: ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375 (TR).

22 On 17 October 2024, the appellant filed his application for judicial review, which was dismissed by the primary judge on 19 June 2025.

TRIBUNAL’S REASONS

23 It was not disputed before the Tribunal that the appellant did not pass the character test, and so the question for the Tribunal to determine was whether there was ‘another reason’ why the cancellation of the appellant’s visa should be revoked under s 501CA(4) of the Migration Act.

24 In determining that question, the Tribunal was required to comply with any direction made by the Minister under s 499 of the Migration Act: s 499(2A). The applicable direction was ‘ Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ’: TR [10].

25 The Tribunal set out the guiding principles contained in para 5.2 of Direction 110, and noted that para 6 of Direction 110 stipulated that the Tribunal must take into account the five primary considerations identified in para 8, as well as the three other considerations in para 9: TR [11]–[14]. The Tribunal also observed that para 7(2) of Direction 110 provides that Primary Consideration 1 is generally to be given greater weight than other primary considerations, and that primary considerations generally should be given greater weight than the other considerations. In the case before it, the Tribunal noted that it was agreed that Primary Considerations 2 and 4 and Other Consideration (c) were not relevant (TR [15]), leaving the Tribunal to consider:

Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct

Primary Consideration 3 – The strength, nature and duration of the appellant’s ties to Australia

Primary Consideration 5 – Expectations of the Australian community

Other Consideration (a) – Legal consequences of the decision the Tribunal proposes to make

Other Consideration (b) – Extent of impediments that the appellant would face if removed from Australia

26 Before proceeding to evaluate the applicable considerations, the Tribunal outlined the appellant’s life history, his extensive history of criminal offending, and circumstances of drug use and other factors said to be related to his criminal offending: TR [17]–[61].

27 In relation to Primary Consideration 1, the Tribunal began by noting that “[g]iven the [appellant]’s criminal history, this primary consideration must weigh against him”, but that the extent to which it does is to be determined by a consideration of two factors: a) the nature and seriousness of the appellant’s conduct (para 8.1.1 of Direction 110), and b) the risk to the Australian community should he commit further offences or engage in other serious conduct (para 8.1.2 of Direction 110): TR [62].

28 As for the nature and seriousness of the appellant’s conduct, the Tribunal considered that the appellant’s criminal offending was “frequent” and “persistent”; his property and dishonesty offences caused financial loss and inconvenience to multiple individuals and businesses in the community; his traffic offences undermined the road safety system; his two episodes of violent offending must be viewed as “very serious” by virtue of Direction 110 and involved infliction of numerous and severe physical injuries on his neighbour; his credit card and loan fraud offending was “very serious” due to its scale; and he continued offending after being formally warned on multiple occasions that to do so could lead to his visa being cancelled: TR [64]–[71].

29 Overall, the Tribunal concluded as to the nature and seriousness of the appellant’s conduct (para 8.1.1 of Direction 110) that the appellant’s criminal offending “attracts heavy weight against revoking the cancellation of his visa”: TR [72].

30 The Tribunal’s consideration of the risk to the Australian community should the appellant commit further offences or engage in other serious conduct (para 8.1.2 of Direction 110) is central to this appeal. The Tribunal noted at TR [74]–[76] that in considering the risk to the Australian community should the appellant commit further offences or engage in other serious conduct:

I must have regard to the following relevant factors on a cumulative basis:

(a)    the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and

(b)    the likelihood of [sic] that he will engage in further criminal or other serious conduct.

The Applicant’s criminal history is varied, encompassing traffic offences, dishonesty and fraud offences, property offences, trespass and entering premises to commit an offence, possession of weapons and ammunition, and violent offences. This means that there is a broad range of harm that he could cause if he were to re-offend. That harm includes serious financial, physical and psychological harm. In particular, the harm from another violent attack like the one on his neighbour includes very serious physical harm and possibly death. It is so serious that a material risk of another attack like that could only be counter-balanced by very compelling factors in the Applicant’s favour.

The Applicant has a lengthy criminal history that is closely tied to his long-standing drug dependence. When he was using drugs, and in need of drugs, he was prepared to commit a range of criminal offences that would obviously cause detriment or create a risk of harm to others in the community. The prospect of prison or removal from Australia did not deter him. The last time he was released from custody, he quickly returned to drug use and crime in breach of his parole conditions. He even used drugs while in prison and in immigration detention as recently as June 2024.

31 The Tribunal made note of the appellant’s expressions of remorse and the responsibility he accepted for his offending, for which he apologised, as well as his progress in drug rehabilitation, trauma counselling and anger management and his personal aspirations and efforts towards lifestyle changes: TR [76]–[85]. It also accepted that the appellant had a number of protective supports that could assist his rehabilitation including positive influences from his family and community and offers of employment: TR [86]–[90]. The Tribunal concluded that there was a moderate risk of the appellant committing further offences, including violent crime, recording at TR 91:

The Applicant has previously been faced with visa cancellation, and he has promised not to re-offend. He has previously put forward his faith and family as protective factors. In fact, many of the protective factors that he has put forward in this proceeding have previously been put forward in one way or another. He may well have been sincere on previous occasions, as I think he is now. However, he did re-offend. I am concerned that, even with all the factors motivating him to stay drug-free and abide by the law, and all the supports he has in place, there is a moderate risk that he will relapse and not recover, and this will lead to crime, which could realistically include very violent crime.

32 The Tribunal then turned to consider the weight to be attached to its assessment of risk in its consideration of para 8.1.2 of Primary Consideration 1, observing at TR [92]–100:

The Direction contemplates that a decision to cancel a visa, or not to revoke the cancellation of a visa, will result in the non-citizen being removed from, or kept out of, the wider Australian community. The relevance of the risk of re-offending is obvious: allowing the noncitizen to have the visa means potentially allowing a risk of harm into the wider Australian community. However, since NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“ NZYQ ”) there are some non-citizens who the government will allow to live in the wider Australian community on a BVR even if their substantive visa is cancelled. The Direction does not lend itself well to this situation.

The question arises, in a case like this: should the Tribunal allocate weight solely on the basis of the risk of harm posed by the Applicant in the wider community, or should the Tribunal allocate weight based on the difference between the risk of harm he poses under the BFT visa versus the BVR. It was contended on behalf of the Applicant that there is no difference between the risk of harm under each visa. The Respondent accepted that the Tribunal should consider this contention but rejects it on the facts. As considering it favours the Applicant, and the Respondent conceded that I should, that is what I have done.

The Respondent helpfully provided written submissions about the BVR conditions, which were not challenged by the Applicant. The following paragraphs draw heavily on those submissions.

One of the criteria for the grant of a BVR is cl 070.612A in schedule 2 of the Regulations. This clause 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.

The Minister is assisted in making decisions under cl 070.612A by advice from the Community Protection Board (“the Board”). The Board consists of members with relevant experience from the fields of law enforcement, corrections, academia, mental health, and the community and multicultural sector, as well as senior public servants from the Department of Home Affairs and Australian Border Force who are responsible for law enforcement, compliance and status resolution. The Board is obliged to provide informed, impartial, evidence-based recommendations to visa decision makers about conditions of individuals’ visas. The recommendations support the management of non-citizens who may pose risks to the safety of the Australian community. BVR decision-makers consider the Board’s recommendations, and any other relevant information, to determine the visa conditions to be imposed on a visa.

It would be reasonable to infer that, as conditions 8620 and 8621 were imposed on the Applicant’s BVR, they were considered reasonably necessary for the protection of the Australian community. Failure to comply with either of these two conditions would have serious consequences for the Applicant, including conviction of a criminal offence under the Crimes Act 1914 (Cth) (“ Crimes Act ”), which attracts a minimum sentence of 1 year imprisonment.

Another condition of the Applicant’s BVR is condition 8303, which provides that the Applicant must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. This is relevant, given his somewhat recent violent offending. While breaching this condition does not attract a criminal penalty under the Crimes Act, it could result in the [bridging] visa being cancelled.

The Applicant contended that the threat of criminal sanctions that would apply to the Applicant, as they apply to any member of the Australian community, would be just as effective as the BVR conditions. There is some merit to this argument, although in the Applicant’s case, with his long history of offending, it could be put the other way around: the threat of criminal sanctions would be as ineffective as the BVR conditions. The Applicant has not previously been deterred by the threat of criminal sanctions or by the threat of deportation. His risk of re-offending depends largely on his attitude and somewhat on the supports around him.

However, the nigh-time [sic] 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 visa back, although I cannot speculate about what the differential is. On this basis, I allocate only marginal weight to this factor.

33 The Tribunal concluded at TR [101] that “Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa”.

34 The Tribunal made a further observation at TR [102] that:

I am concerned that where a non-citizen poses a high risk of harm to the Australian community, and has shown disregard for laws and regulations, then allocating weight based on a comparison of the risk of harm under one visa versus another could work against the central purpose of the legislation, Direction and, more specifically, Primary Consideration 1. That is because low or no weight would be allocated against the non-citizen with respect to risk of harm, which would increase their prospects of getting their visa back despite the danger they pose to the community. This works against the protection of the Australian community.

35 In relation to Primary Consideration 5, the Tribunal observed that Direction 110 provides that where a non-citizen has engaged in serious conduct in breach of the deemed expectation of the Australian community that they will obey Australian laws while in Australia, or where there is an unacceptable risk they may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia: TR [103]. The Tribunal noted that this deemed expectation does not sit neatly with the circumstances before it, where the appellant would remain in Australia for the foreseeable future regardless of its decision, either on a BVR or the BFT visa: TR [104]. After recounting the appellant’s offending history, and that Direction 110 deems violent offences to be of particular concern to the Australian community, the Tribunal concluded that “Primary Consideration 5 weighs heavily against revocation of the cancellation” of the appellant’s visa: TR [106].

36 The Tribunal’s approach to Primary Consideration 5 is not impugned in this appeal.

37 In relation to Primary Consideration 3, the Tribunal observed that the appellant had lived in Australia for 31 years, having arrived at the age of 14 years, he has friends and links to the Christian community, and has a number of family members who are Australian citizens, and although his relationships with them have difficulties “his familial bonds are very strong”: TR [116]–[119]. The Tribunal considered that the uncertainty of the BVR, and risk of imprisonment if he were to break certain visa conditions on it, would impact his ability to care for and help his family including his family members who are ill: TR [120]. The Tribunal concluded by allocating “moderate to heavy weight” in the appellant’s favour under Primary Consideration 3: TR [121].

38 The Tribunal’s approach to Primary Consideration 3 is not impugned in this appeal.

39 In relation to Other Consideration (a) (legal consequences of the decision the Tribunal proposes to make), the Tribunal observed that because a protection finding had been made by the Minister in relation to the appellant, his removal to Iraq is not required or authorised, and the Minister conceded that there was no real prospect of his removal to a third country in the reasonably foreseeable future in the event of a decision not to revoke the cancellation of the appellant’s visa. The Tribunal observed that the appellant would remain in the community regardless of its decision. It observed that in the event of a non-revocation decision, the appellant would “remain in the community subject to the conditions attached to the BVR” and in the event of a revocation decision, the appellant’s BVR would cease and he would regain his BFT visa: TR [110]. The Tribunal observed at TR [111]–[113]:

The Applicant can live a relatively normal life on the BVR, and he has access to Centrelink and Medicare. However, the BVR conditions are more onerous than those attached to a Class BF Transitional (Permanent) visa. For example, the Applicant’s BVR:

• requires him to report changes in his residential address, personal details, employment details and circumstances;

• contains restrictions on certain kinds of employment such as occupations involving the use of chemicals of security concern, weapons or explosives;

• contains restrictions on becoming involved in activities disruptive to, or violence threatening harm to, the Australian community;

• requires him to be at his residence between 10pm and 6am; and

• requires him to wear a monitoring device.

The Applicant said he would have no trouble complying with the conditions of his BVR. I accept that he gave that evidence in the context of just having been released from immigration detention, so he was feeling very positive. It is likely that he will start to find some conditions irritating or onerous after a while. For example, he plans to hide the monitoring device under trousers when he is at work, and presumably elsewhere, however this may be problematic in hot weather. The monitoring device requires charging for an hour each morning and night. The Applicant will only be able to work a day shift at the restaurant, as the later shift finishes at around 2.00am. He can make representations to the Minster [sic] about removing the curfew and monitoring device conditions, although he does not have any plans to do that, and I have found that these conditions are likely to assist in his rehabilitation.

I accept that the Applicant will not always be able to hide the monitoring device and that it is likely that people who see it will think he is a criminal. I also accept that it is an indignity to have to continually report changes in one’s personal circumstances. There is some uncertainty about the BVRs in that it is not a permanent visa, it is not known how long the BVR will last, and it is not known what would happen to the Applicant if he were to engage in a non-criminal breach of a condition. I accept that uncertainty can be psychologically corrosive, and that the uncertainty is likely to impact those who care about the Applicant, as well as the Applicant. I further accept that the uncertainty will make it hard for the Applicant to make long term plans, such as entering a committed relationship.

40 The Tribunal concluded that Other Consideration (a) “weighs moderately in favour of revocation of the mandatory cancellation”: TR [114].

41 The appellant’s grounds of appeal did not challenge the Tribunal’s consideration of Other Consideration (a) – the legal consequences of its decision.

42 The Tribunal determined that no weight applied to Other Consideration (b) (extent of impediments that the appellant would face if removed from Australia) given that there was no prospect of the appellant being removed to Iraq in the reasonably foreseeable future as a result of the Tribunal’s decision: TR [115].

43 No challenge was made on appeal to the Tribunal’s consideration of Other Consideration (b).

44 The Tribunal ultimately concluded that as Primary Considerations 1 and 5 weighed heavily against revocation, whilst Primary Consideration 3 weighed moderately to heavily in favour of revocation and Other Consideration (a) weighed moderately in favour of revocation, there was “more weight in favour of not revoking the cancellation” of the appellant’s visa. There was therefore not “another reason” to revoke the cancellation, and the delegate’s decision was affirmed: TR [122], [123].

PRIMARY JUDGMENT

45 The appellant contended before the primary judge that the Tribunal committed jurisdictional error in two ways, both of which were said to be material.

(1)    First, because the Tribunal was said to have proceeded on an incorrect understanding of the state of satisfaction that the Minister was required to form before imposing the bridging visa conditions under cl 070.612A of Sch 2 to the Regulations, as it stood at the time of the Tribunal’s decision. The Tribunal said at TR [95] that cl 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”. This is an incorrect description of the state of satisfaction required of the Minister. As the High Court stated in YBFZ at [85], 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’)… meaning that the provision resolves all doubt and uncertainty in favour of the imposition of the conditions”.

(2)    Second, because the Tribunal decision was made “on the basis of the law as it was then understood to be, whereas the law, as later proclaimed with retrospective effect in YBFZ, was different”. The Tribunal had made its decision on the basis that if the cancellation of the appellant’s visa was not revoked, the appellant would remain in the community on a BVR with curfew and monitoring conditions imposed under cl 070.612A(1)(a) and (d), but pursuant to YBFZ those conditions were not validly imposed. The failure to act on a correct understanding of the law on a point of sufficient significance to the ultimate decision can result in jurisdictional error, even if the misunderstanding of the law is established by a subsequent judicial decision which could not be known at the time the decision was made: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; (2021) 285 FCR 667.

46 In relation to the second error, the primary judge held that the Tribunal did commit an error by proceeding on the assumption that subcll 070.612A(1)(a) and (d) were valid and that a decision to affirm the non-revocation of the visa cancellation would result in the appellant remaining in the community on a BVR with curfew and monitoring conditions. That error was committed even though it was “unknown, and unknowable” to the Tribunal to be erroneous at the time, by virtue of the subsequent decision in YBFZ: PJ [78]–[79].

47 However, the primary judge considered that this second error was not jurisdictional: PJ [87]. That was because the Tribunal was exercising the power under s 501CA(4) of the Migration Act, rather than acting under cl 070.612A. Accordingly, although the Tribunal’s analysis of the conditions that were anticipated to apply to the BVR was relevant to, and played a role in, the Tribunal’s analysis of whether to exercise the power under s 501CA(4) to reinstate the BFT visa, the Tribunal did not misunderstand the law under which it acted: PJ [85]. The primary judge also considered that the error was not jurisdictional in circumstances where the Tribunal (at TR [100]) attributed only “marginal” significance to the bridging visa conditions within its broader revocation analysis under s 501CA, and those bridging visa conditions were susceptible to change whether 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: PJ [86].

48 In the alternative, the primary judge considered that even if the second error was jurisdictional, it was not material to the Tribunal’s decision: PJ [89]. Because the Tribunal attributed only “marginal weight” to the role of the bridging visa conditions in lowering the risk posed by the appellant to the Australian community (compared to the risk that would otherwise exist if he had a permanent visa), the primary judge considered the error in relation to the bridging visa conditions was not “on a point of real significance to the ultimate decision”: PJ [90]–[94]. The primary judge considered the case distinguishable from AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; (2024) 304 FCR 586 at [44]–[45], [49], 51 and CBW20 at [57] and 59. In his Honour’s view, it could be affirmatively concluded that the Tribunal would have reached the same decision had the Tribunal’s error not been made: PJ [96]–[99].

49 In relation to the first alleged error, the primary judge considered that no such error was committed. His Honour agreed with the Minister’s submission that the Tribunal’s statement at TR [95] was only an introductory observation identifying the general subject matter of what cl 070.612A(1) required of the Minister and not an attempt to “assay the precise effect of the clause”: PJ [80]. His Honour considered that 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: PJ [81].

50 On appeal, the appellant contends that the primary judge erred in respect of both alleged errors made by the Tribunal, in that both are said to have been jurisdictional and material.

CONSIDERATION

51 Both grounds of appeal allege the Tribunal committed jurisdictional error by reason of making errors of law. The first alleged error of law concerns the Tribunal’s formulation of the state of satisfaction required of the Minister by cl 070.612A in Sch 2 to the Regulations. The second alleged error of law concerns the Tribunal’s understanding of the validity of the curfew and monitoring conditions that were attached to the appellant’s BVR.

52 It is convenient to consider the second alleged error before considering the first alleged error (which is the same order in which the primary judge considered them).

The second alleged error – Invalidity of bridging visa conditions

53 It was not disputed, either before the primary judge or on appeal, that the Tribunal unwittingly made an error by proceeding on the assumption that subcll 070.612A(1)(a) and (d) were valid and that if the cancellation of the appellant’s BFT visa was not revoked, the appellant would remain in the community on a BVR with curfew and monitoring conditions.

54 The Minister submitted that any error concerning the curfew and monitoring conditions was no more than “a disappointed prediction of fact” being a mistake as to the Tribunal’s anticipation of the conditions of the appellant’s BVR and that this was not an error of law. The Minister characterised the conditions that attached to the BVR as being susceptible to change and referred to the Tribunal’s observation (at TR [113]) that “[t]here is some uncertainty about the BVRs in that it is not a permanent visa, it is not known how long the BVR will last, and it is not known what would happen to the [appellant] if he were to engage in a non-criminal breach of a condition”. By his further written submissions, the Minister submitted that irrespective of whether the conditions were subsequently found to have been invalidly imposed, the fact was that, at least prior to the delivery of the High Court’s decision in YBFZ on 6 November 2024, the appellant had held a visa that was subject to curfew and monitoring conditions and that whatever rehabilitative effect the Tribunal apprehended those visa conditions might achieve was no more than a disappointed prediction of fact.

55 The Minister’s submission that the error committed by the Tribunal was not an error of law is not accepted. As set out above, at the time of the Tribunal’s decision, the appellant had in fact been issued with a BVR that had conditions attached to it including the curfew and monitoring conditions. In its consideration of Primary Consideration 1, the Tribunal was not making a prediction in relation to a future BVR that might possibly be issued with possible conditions attached to it: cf Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at [13]–[14], 19. The Tribunal was proceeding on the basis of a BVR that had been issued with the curfew and monitoring conditions and assumed that those conditions would subsist for 12 months because those conditions could be validly imposed. That assumption involved an error of law.

56 The issue which arises is whether that error of law amounts to jurisdictional error in the circumstances of this case.

57 The parties contend that there is a conflict between the judgment of the primary judge below (at [83]–[85]) and the judgment of Hill J in DXJL v Minister for Immigration [2025] FCA 1303 (at [26]–[27]) in the articulation of the relevant principles that apply in determining whether an error of law amounts to jurisdictional error.

58 The primary judge commenced his analysis in relation to the effect of this error by citing Latham CJ in R v Connell; Ex parte Hetton Bellbird Coll i eries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430. That passage of Latham CJ’s reasons for judgment reads:

Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.

59 The primary judge considered that here the Tribunal was seized of power pursuant to s 501CA of the Migration Act and that although the BVR and its conditions played a role in the Tribunal’s analysis as to whether it should reinstate the BFT visa, the Tribunal was not “acting under clause 070.612A”: PJ [85]. Any misunderstanding the Tribunal may have had of the validity of the conditions imposed on the appellant’s BVR was considered by the primary judge not to be a misunderstanding of the law under which the Tribunal acted.

60 The Minister on appeal accepted that Latham CJ’s statement in Hetton Bellbird did not constitute an exhaustive statement of the circumstances in which an error of law might amount to jurisdictional error.

61 In DXJ L, Hill J considered that a decision maker’s obligation to understand the law correctly extended to an obligation to correctly understand “the legal framework that establishes the legal consequences of a decision” (at [27]), which required a correct understanding of the Migration Act and its consequences.

62 To the extent that Hill J in DXJL (at [30]) is to be taken as suggesting that any error of law in relation to the Migration Act that is not “so peripheral to the issues to be decided” is a jurisdictional error, that suggestion may be too broad. It is the connection between the error of law and the instant exercise of power in issue which is critical to the determination of whether an error of law amounts to jurisdictional error.

63 We consider the following principles to be applicable in determining whether the error of law committed by the Tribunal in the present case amounted to jurisdictional error:

(1)    As the Minister submitted, not every error of law by a decision maker amounts to jurisdictional error: CBW 20 at [59]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [80]–81; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 at 70; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [23]–25.

(2)    Jurisdictional error arises where a decision maker exceeds the limits of the decision-making authority conferred on them by statute: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [29]–30. There is a common law presumption of statutory interpretation that a statutory conferral of decision-making authority on a person or body other than a court is conditioned by an implied statutory requirement that the person or body can validly exercise that authority only on a correct understanding of the law applicable to the decision to be made: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 at 75.

(3)    Whether an error of law amounts to jurisdictional error requires a construction of the power being exercised and the circumstances of its exercise to determine the importance of the role played by the error in the making of the decision: CBW20 at [59].

(4)    We do not accept the Minister’s contention that jurisdictional error arising from an error of law can be found only where the error of law concerns the legal consequences of the decision and the legal consequences of the decision are mandatory relevant considerations. That is only one example. Examples of jurisdictional error arising from an error of law include:

(a)    An error of law that results in a misconception of what the exercise of the decision-making power entails: R e Patterson; Ex Parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [189], 196;

(b)    An error of law that results in a failure to take into account a mandatory relevant consideration. This may arise where a mandatory consideration is the legal consequences of the decision and there is an error of law in understanding what those legal consequences are: AJN23 at [33]–[34]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9]–10 (contrast where the error of law affects a non-mandatory consideration: HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133; (2022) 294 FCR 13 at 67);

(c)    An error of law that results in a decision maker taking into account an irrelevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136 at [4], 36, 74.

(5)    The error of law must relate to a point of sufficient significance to the decision made in that the error must have a close connection to the decision that is being made: CBW20 at [59]. It is unclear whether this is a requirement that needs to be satisfied before considering the question of materiality. Given that an error which is not material is not jurisdictional this may be an issue of limited consequence: see AJN23 at [44]–45.

64 In the present case, the legal consequences of the decision to be made was a mandatory relevant consideration because Direction 110 so required and s 499(2A) of the Migration Act required the Tribunal to comply with that Direction. However, as became apparent during the course of submissions, the appellant’s appeal does not relate to the Tribunal’s evaluation of that mandatory consideration (see above at [41 ] of these reasons). This is not surprising given the Tribunal weighted Other Consideration (a) regarding the legal consequences of its decision in the appellant’s favour. Rather, the appellant’s contention is that the Tribunal’s consideration of Primary Consideration 1 was affected by jurisdictional error. In so framing his case, the appellant contends that the Tribunal’s misunderstanding of the validity of the curfew and monitoring conditions of his BVR was of such relevance as to infuse the entire decision not to revoke the cancellation of his BFT visa with jurisdictional error.

65 The High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 reaffirmed (at 7) that in most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. The issue of materiality involves a close consideration of the decision that was in fact made and how it was made: LPDT at [10]. This consideration is performed by examining the decision maker’s statement of reasons (where available).

66 In considering the appellant’s contention, it is therefore necessary to consider the context and structure of the Tribunal’s reasoning in relation to Primary Consideration 1.

67 The Tribunal identified two elements that were required to be evaluated in considering Primary Consideration 1. The first element was the nature and seriousness of the appellant’s conduct to date (as required to be considered pursuant to para 8.1.1 of Direction 110). This element was considered as attracting heavy weight against revocation of the cancellation of the appellant’s BFT visa: TR [73].

68 The second element identified by the Tribunal was the risk to the Australian community should the appellant commit further offences or engage in other serious conduct (as required to be considered pursuant to para 8.1.2 of Direction 110). The Tribunal recognised that in considering this second element there are two factors to which regard has to be given on a cumulative basis:

(a)    The nature of the harm should the appellant engage in further criminal or serious conduct; and

(b)    The likelihood that he would engage in further criminal or other serious conduct.

69 The Tribunal considered that the nature of the harm should the appellant re-offend in a similar way to his recorded offending included very serious physical harm and possibly death: TR [75].

70 The Tribunal concluded that the appellant had a moderate risk of relapsing and not recovering from his drug use and the Tribunal considered this would lead to crime which could realistically include very violent crime: TR [91].

71 Having identified the risk as moderate, the Tribunal then separately articulated its reasoning concerning the weight to be attributed, in making its decision, to this finding of moderate risk. The Tribunal followed the course contended for by the parties – that in assessing the weight to be allocated to this factor of risk, weight should be allocated “based on the difference between the risk of harm [the appellant] poses under the BFT visa versus the BVR”: TR [93]. The appellant had submitted to the Tribunal that there was “no difference” between the risk of harm under each visa: TR [93].

72 As Bromwich J explained in DVRL v Minister for Immigration [2025] FCA 876 (at [35], [46], [48]), in considering Primary Consideration 1 it may be appropriate for a decision maker to adopt a comparative risk analysis that looks at the relative risk to the community posed by the non-citizen holding the cancelled visa compared to a BVR. The circumstances in which such a comparative risk analysis may be appropriate were identified by Bromwich J as including where that non-citizen is affected by the High Court’s decision in NZYQ (and will remain in the Australian community regardless of a revocation decision being made) and that non-citizen makes a claim relating to the difference in risk depending on the visa held. (The Court notes that an appeal against the decision in DVRL was heard by a differently constituted Full Court of this Court on 10 March 2026, with judgment currently reserved.)

73 In undertaking the comparative risk analysis in respect of each visa, the Tribunal in the present case drew upon the BVR conditions, making specific reference to the curfew and monitoring conditions: TR [94]–[97]. The Tribunal also made specific reference to condition 8303 which provides that the appellant must not become involved in activities disruptive to, or violence threatening harm to, the Australian community: TR [98]. Condition 8303 was not a condition the subject of the High Court’s decision in YBFZ.

74 The Tribunal expressed reservations about whether the BVR conditions (as opposed to the threat of criminal sanctions that all members of the community face) affected the risk of the appellant re-offending: TR [99]. However, the Tribunal considered that the curfew and monitoring conditions were “potential supports” such that there was “likely to be a lower risk of re-offending if the [appellant] has a BVR than if he has his visa back”: TR [100]. Critically and transparently, the Tribunal then expressed the weight it was attributing to this comparative risk differential as “only marginal weight”: TR [100].

75 The appellant submits that the invalid curfew and monitoring conditions were not peripheral to the Tribunal’s analysis because the Tribunal had not concluded that the holding of the BVR would make no discernible difference in risk to the Australian community. The appellant submitted, rather, that the Tribunal considered there was a discernible difference in risk. The appellant submits that the Tribunal’s consideration of the BVR conditions could not be described as being of only “marginal” significance, because the Tribunal considered them over ten paragraphs and made a specific finding that there was likely to be a lower risk of re-offending if the appellant continued to hold a BVR with the curfew and monitoring conditions.

76 The appellant’s submission is not accepted. The Tribunal expressly recorded in its reasons that in evaluating Primary Consideration 1 it attributed only “marginal weight” to the consequence of its finding that there was likely to be a lower risk of re-offending if the appellant continued to hold a BVR with curfew and monitoring conditions as opposed to his cancelled BFT visa. In other words, although the Tribunal did not accept the appellant’s submission before it that there was “no difference between the risk of harm under each visa”, the Tribunal accorded only marginal weight to its finding that there was likely to be a lower risk if the appellant continued to hold the BVR with the curfew and monitoring conditions.

77 The Tribunal concluded that overall, Primary Consideration 1 weighed heavily against revocation of the cancellation of the appellant’s BFT visa: TR [101].

78 The Tribunal had observed (at TR [16]) that para 7(2) of Direction 110 provides that Primary Consideration 1 is generally to be given more weight than the other primary considerations, and that primary considerations are to be generally given more weight than other considerations. The Tribunal further observed that para 7(3) provides that one or more primary considerations may outweigh other primary considerations.

79 In its ultimate conclusion, the Tribunal weighed Primary Considerations 1, 3 and 5 and Other Consideration (a). The Tribunal considered that two primary considerations weighed heavily against revocation, whereas there was only one primary consideration of moderate to heavy weight in favour of revocation along with one other consideration weighing moderately in favour of revocation: TR [122].

80 It is evident from the face of the Tribunal’s reasons that its conclusion in relation to the weight to be accorded to Primary Consideration 1 was not materially affected by its conclusion as to the relative risk to the Australian community of the appellant holding a BVR with curfew and monitoring conditions as opposed to holding a BFT visa. The curfew and monitoring conditions of the appellant’s BVR were explicitly accorded only marginal weight in the Tribunal’s reasoning on protection of the community such that it can comfortably be concluded that the overall weight the Tribunal would have accorded to Primary Consideration 1 could not have realistically been different had it known that these two conditions of the BVR were constitutionally invalid.

81 In these circumstances, there was no error in the primary judge’s conclusion that the Tribunal would have reached the same decision even if the error had not been made: PJ [96]–[98]. The primary judge was correct to conclude (at [98]) that based on the record of the Tribunal’s reasons, the BVR conditions were not “an important underpinning of the decision” or that the Tribunal decision was “imbued” or “infused” with error (compare AJN 23 at [49] and DXJL at [42]). DXJL (at [38]) is to be distinguished because here the conditions of the BVR were not of sufficient importance to the Tribunal’s reasoning in reaching its decision.

The first alleged error – Misunderstanding of the requisite state of satisfaction

82 This ground of appeal concerns the Tribunal’s comment that “[cl 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”: TR [95].

83 The appellant submits that the primary judge erred by finding that the Tribunal’s description of the state of satisfaction required of the Minister in deciding whether to impose the conditions under cl 070.612A(1) was no more than “an introductory observation”: PJ [80]. The appellant contends the Tribunal’s description constituted an error of law that was jurisdictional because it was a misunderstanding of the applicable law.

84 Clause 070.612A(1) at the relevant time was drafted as requiring the conditions to be imposed unless the Minister was satisfied of a negative stipulation, rather than enabling the Minister to impose the conditions if satisfied of a positive stipulation. The Tribunal’s statement at [95] about cl 070.612A(1) may therefore be described as not strictly accurate.

85 However, any lack of accuracy did not form part of the Tribunal’s reasoning process. It was no part of the Tribunal’s review task, and the Tribunal did not purport, to reach or review the state of satisfaction required by cl 070.612A of Sch 2 to the Regulations. As the primary judge correctly concluded, the Tribunal was not purporting to assay the precise effect of the clause. What the Tribunal did consider as part of its reasoning process was the effect of the conditions that in fact had been imposed by the Minister on the appellant’s BVR.

86 Any lack of accuracy in the Tribunal’s description of the clause did not reflect a misapprehension of the Tribunal’s statutory task or reflect a misapprehension of the law the Tribunal was required to apply in discharge of that statutory task.

87 The Tribunal did not commit any jurisdictional error with respect to the state of satisfaction required by cl 070.612A, and the primary judge did not err in his Honour’s consideration of it.

CONCLUDING REMARK

88 Although it did not form any part of the decision challenged on appeal, we note for completeness that the Tribunal recorded at TR [102] a general concern regarding the comparative risk analysis described above. The Tribunal’s concern was that allocating weight to the risk of harm should the non-citizen re-offend (para 8.1.2 of Direction 110), based on a comparison of the risk of harm posed by the non-citizen if holding one visa versus another, could result in a situation where, notwithstanding a non-citizen poses a high risk of harm to the Australian community (which was not the conclusion reached by the Tribunal in respect of the appellant; the appellant was found to be a moderate risk), low or no weight would be allocated to the risk of harm posed in making a decision about revoking cancellation of a visa. The Tribunal’s concern was that this situation would run counter to the purpose of Primary Consideration 1 in Direction 110.

89 Addressing that general concern, reference may be made to the observations of the Full Court of this Court in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539 at 51, 113 and the High Court in Plaintiff S22 /2025, both of which recognised that there is not necessarily illogicality or irrationality in cancelling a non-citizen’s visa in circumstances where the non-citizen will nonetheless remain in Australia on a BVR. A cancellation of a non-citizen’s visa in such circumstances can ensure that the non-citizen remains liable to be removed from Australia, even if their removal is not reasonably practicable at the time of the decision.

DISPOSITION

90 The appeal is dismissed.

91 The appellant is to pay the costs of the first respondent, to be taxed if not agreed.

| I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Hespe and Needham. |
Associate:

Dated: 16 April 2026

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