Minister for Immigration and Citizenship v GNHW

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 25 August 2026
• Neutral Citation: [2026] FCAFC 107
• Date: 25 August 2026

Federal Court of Australia

Minister for Immigration and Citizenship v GNHW [2026] FCAFC 107

ORDERS

VID 1656 of 2025
BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	GNHW First Respondent ADMINISTRATIVE REVIEW TRIBUNAL Second Respondent

order made by:	BURLEY, O’Bryan and Jackson jJ
DATE OF ORDER:	25 August 2026

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, 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:

1 INTRODUCTION	[1]
1.1 Background	[2]
1.2 Primary judgment	[8]
1.3 The Notices of Appeal and of Contention	[13]
1.4 Summary of Conclusions	[15]
2 THE DECISION OF THE TRIBUNAL	[16]
3 GROUND 1	[40]
3.1 The reasons of the primary judge	[40]
3.2 The submissions	[42]
3.3 Consideration	[45]
4 CONCLUSION	[54]

1. INTRODUCTION

1 The Minister for Immigration and Citizenship appeals from a decision of a judge of this court pursuant to which orders were made that a writ of certiorari be issued quashing a decision of the Administrative Review Tribunal and a writ of mandamus be issued to the Tribunal in respect of the application for review: GNHW v Minister for Citizenship (No 2) [2025] FCA 1578 (judgment). The decision of the Tribunal involved an application for review, by the first respondent in these proceedings, of a decision of a delegate of the Minister declining to grant a Permanent Protection Visa (Class XA) (protection visa) on the basis that the respondent does not pass the character test in s 501(1) of the Migration Act 1958 (Cth). The Tribunal affirmed the decision of the delegate: GNHW and Minister for Immigration and Multicultural Affairs [2025] ARTA 80 (ARTA 2025).

1.1 Background

2 The respondent is a 33 year old citizen of South Sudan who, upon his arrival in Australia on 25 December 2017, was given a Global Special Humanitarian (Class BA) (Subclass 202) visa (subclass 202 visa) under the terms of the Migration Act. On 8 January 2020 he was convicted of various offences and sentenced to 24 months of imprisonment. As a consequence, his visa was cancelled pursuant to s 501(3A) of the Migration Act. Subsequently, the respondent successfully appealed against his sentence, which on 27 November 2020 was reduced to 7 months of imprisonment.

3 The respondent applied for a protection visa on 23 December 2020 and on 17 June 2021 a delegate of the Minister produced a draft Protection Visa Assessment Record that indicated that he met the requirements for being a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Migration Act.

4 On 15 December 2021 the respondent was re-notified by the Minister’s department of the decision to cancel his subclass 202 visa. He then sought revocation of the cancellation of that visa. On 4 October 2022, a delegate of the Minister decided not to revoke that cancellation. The respondent then sought a review in the Tribunal of the delegate’s decision and on 23 December 2022 the Tribunal issued its reasons, affirming the decision of the delegate not to revoke the mandatory visa cancellation: see GNHW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4439.

5 On 30 August 2024, the Minister’s department gave notice to the respondent of its intention to consider refusal of the protection visa application under s 501(1) of the Migration Act on the basis that the department was in possession of information which suggested that the respondent did not pass the character test because, in the event that he were allowed to remain in Australia, there was a risk that he would engage in criminal conduct: see ss 501(1), 501(6)(d)(i) of the Migration Act.

6 On 14 November 2024 a delegate of the Minister made a decision under s 501(1) of the Migration Act to refuse to grant the respondent a protection visa. The respondent sought a review of that decision. Also on 14 November 2024, the respondent was released from immigration detention into the community on a Class WR Bridging R (Removal Pending) (subclass 070) Visa (BVR visa). His release was as a consequence of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137.

7 On 6 February 2025, the Tribunal affirmed the decision of the delegate not to grant the respondent a protection visa: see ARTA 2025. The respondent then applied to this Court for judicial review of that decision. On 21 November 2025 a judge of this Court made the orders and gave the judgment that is the subject of the present appeal.

1.2 Primary judgment

8 The primary judge considered three substantive grounds of review in his decision. In the first, the respondent contended that the Tribunal erred by asking itself the wrong question in assessing the risk to the Australian community, in that it failed to compare the risk to the community if the respondent was granted a visa and remained in Australia on a permanent visa, with the risk to the community if he was refused a visa and remained in Australia on a BVR visa, or by failing to consider a substantial and clearly articulated argument.

9 In both aspects of this argument, the respondent contended that the Tribunal failed to give proper consideration in a differentiated way to two counterfactual positions: (a) if the decision was reversed and the respondent was entitled to a protection visa (effectively granting him permanent residence); and (b) if he remained on the BVR visa. The respondent argued that if it were considered in this manner, the potential risk the applicant would pose to the community could be effectively mitigated by the grant of a permanent visa (review ground 1).

10 In the second, the respondent contended that the Tribunal erred by misconstruing or misapplying paragraph 8.2 of Ministerial Direction No. 110: Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (Direction), (which concerns family violence committed by the non-citizen) or by making a finding or findings that were irrational, illogical or unreasonable or by denying the respondent procedural fairness (review ground 2). This ground challenged the Tribunal’s consideration of a family violence report dated 24 July 2019 which concerned conduct of the respondent, and the Tribunal’s apparent conclusion that the conduct did amount to ‘family violence’ as defined in the Direction.

11 In the third, the respondent contended that the Minister breached his obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived it of the ability to consider matters it was required to consider and resulted in a denial of procedural fairness (review ground 3). This ground concerned the legal consequences for the respondent if the protection visa were refused, and particularly the risk that the respondent would be removed to a third country pursuant to s 76AAA of the Migration Act 1958 (Cth).

12 In the judgment, the primary judge upheld the first and third of these grounds but rejected the second.

1.3 The Notices of Appeal and of Contention

13 In this appeal, the Minister advances two grounds of appeal which challenge the first and third review grounds (particulars omitted):

(1) The primary judge erred in finding that the Tribunal had failed to consider a claim or an integer of a claim made by the respondent and that this purported failure gave rise to jurisdictional error affecting the Tribunal’s decision (appeal ground 1).

(2) The primary judge erred in finding that the Tribunal had denied the respondent procedural fairness or otherwise failed to discharge its review function (appeal ground 2).

14 The respondent has filed a Notice of Contention in which he advances three grounds:

(1) Independently of the basis on which review ground 1 was upheld by the primary judge, review ground 1 should be upheld on the basis that the Tribunal asked itself the wrong question or reasoned illogically by failing to compare the risk posed to the Australian community if the decision under review were affirmed with the risk posed if the decision under review were overturned; and

(2) Independently of the basis on which review ground 3 was upheld by the primary judge, review ground 3 should be upheld on the basis that the failure of the Minister to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review breached s 56(1) of the ART Act, which breach materially affected the conduct of the review and deprived the Tribunal of the ability to consider matters it was required to consider.

(3) The primary judge erred in failing to find, in respect of review ground 2, that the Tribunal misconstrued or misapplied paragraph 8.2 of the Direction, or made a finding that was irrational, illogical or unreasonable, by finding that the respondent had engaged in family violence.

1.4 Summary of Conclusions

15 It will be apparent that in order for the Minister to succeed in this appeal he must succeed on both of the grounds of appeal. For the reasons set out below, we consider that appeal ground 1 must be dismissed. As a consequence, there is no occasion to set aside the orders of the learned primary judge. No aspect of ground 2 of the appeal or any of the grounds advanced in the Notice of Contention requires determination in order for the Tribunal to reconsider the respondent’s application according to law. Accordingly, we decline to decide the remaining grounds.

2. THE DECISION OF THE TRIBUNAL

16 The Tribunal noted that s 501(6)(e) of the Migration Act provides that a person does not pass the character test if, in the event that the person were allowed to...