Background
GWN25 sought judicial review of an Administrative Review Tribunal decision dated 13 December 2024. The Tribunal had declined to revoke the mandatory cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). He argued that the decision involved jurisdictional error, including because the Tribunal had not complied with a ministerial direction issued under s 499.
The proceeding was delayed pending the Full Court’s decision in Minister for Immigration and Citizenship v DVRL (2026) 316 FCR 477. After that ruling, the Minister accepted that the Tribunal’s decision was affected by the same type of jurisdictional error and joined GWN25 in proposing orders quashing the decision and requiring redetermination. The Tribunal filed a submitting notice, except as to costs.
The Court’s Holding
Snaden J accepted that the Tribunal committed jurisdictional error. GWN25 had argued, with expert support, that his risk of reoffending could be lower if his permanent visa were restored than if he remained in the community on a Bridging Visa R, because different treatment options would be available. Under DVRL, the Tribunal was required when assessing risk to the Australian community under cl 8.1.2 of Direction 110 to consider the risk associated with each visa situation. Its failure to make that comparison was jurisdictional error.
The Court issued certiorari quashing the Tribunal’s decision and mandamus requiring the Tribunal to determine the review application again according to law. It also ordered the Minister to pay GWN25’s costs, fixed at $9,232.20. Although Snaden J noted authority stating that a court must be satisfied of error before granting public-law relief by consent, he questioned whether that requirement is invariably as strict as those authorities suggest and did not resolve the point. Instead, he proceeded on the assumption that actual jurisdictional error had to be established and found that standard satisfied here.
Key Takeaways
- When a visa holder may remain in the community under different visa arrangements, the Tribunal must consider any material difference in the risk posed under each arrangement when applying the relevant ministerial direction.
- A failure to address supported submissions that different visas would provide different treatment options—and potentially different recidivism risks—can amount to jurisdictional error.
- The Court did not definitively decide whether consent-based prerogative relief always requires proof that jurisdictional error actually occurred; it assumed the stricter standard applied and found it met.
Why It Matters
The decision applies DVRL to require a comparative, practical assessment of community risk rather than an assessment confined to the consequences of restoring a permanent visa. In visa-cancellation reviews, evidence about treatment access and risk management under an alternative bridging visa may therefore be legally significant.
The reasons also preserve an unresolved procedural question about the threshold for granting public-law relief by consent. Snaden J’s orders rested on an accepted and identified jurisdictional error, but his Honour did not establish a categorical rule governing every consent disposition.