Background
DBKX, a Sudanese national, arrived in Australia in 2006 on a refugee visa. He has a history of schizophrenia and drug abuse disorder and has been hospitalised multiple times for mental-health treatment. After his refugee visa was cancelled in November 2018 under s 501(3A) of the Migration Act 1958 (Cth) following a criminal conviction, he applied for a protection (Class XA) (Subclass 866) visa in October 2020. A delegate of the Minister refused that application on the ground that the appellant had been convicted of a particularly serious crime and was a danger to the Australian community, within the meaning of s 36(1C)(b) of the Migration Act. The Administrative Appeals Tribunal affirmed that refusal on 4 April 2023. The appellant was unrepresented before the Tribunal.
The Tribunal accepted that the appellant’s offending was linked to non-compliance with schizophrenia medication, illicit drug and alcohol use, and homelessness. It noted that while in prison and immigration detention since August 2018 the appellant had not used drugs or alcohol and had taken his medication, but found it “extremely likely” he would relapse outside a structured environment such as a prison, detention centre or hospital. The appellant had been subject to 14 community treatment orders in the past, none of which he had complied with. Following the High Court’s decision in NZYQ v Minister for Immigration [2023] HCA 37, the appellant was released from immigration detention and had been living on the streets or in custody.
A primary judge dismissed the appellant’s application for judicial review: DBKX v Minister for Immigration and Multicultural Affairs [2025] FCA 700. The Full Court (O’Callaghan, Goodman and Stellios JJ) heard his appeal on 17 March 2026. The appellant was represented by pro bono counsel at both levels.
The Court’s Holding
The Full Court dismissed the appeal on all grounds. On appeal grounds 1(b) and 1(c), the Court held that the Tribunal was not required to consider what community accommodation or support might be available to the appellant if granted a protection visa, nor to consider whether he might become an inpatient under the Mental Health Act 2014 (Vic). The Court reasoned that the only structured environments the Tribunal’s reasoning contemplated as capable of controlling the appellant’s risk factors — prisons, detention centres and hospitals — involved enforceable constraints on liberty that community providers such as the Salvation Army plainly could not replicate. Any inquiry into community accommodation would therefore have amounted to the “constructive or creative activity” that the Tribunal is not required to undertake: NABE v Minister for Immigration (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]. As for inpatient treatment, the appellant’s own lawyer had told the Melbourne Magistrate’s Court in 2018 that the appellant was not “sufficiently unwell to warrant the making of an inpatient assessment order,” so that possibility did not clearly emerge from the material before the Tribunal.
On appeal ground 2(a), the Court held that the Tribunal had no obligation to seek further information about accommodation under ss 40A or 43 of the Administrative Appeals Tribunal Act 1975 (Cth) or s 56 of the Migration Act. Applying Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, the Court observed that the duty to make obvious inquiries about critical facts arises only where those facts are easily ascertainable. Community accommodation options meeting the necessary threshold of structure were not capable of easy ascertainment, and the process for obtaining an inpatient treatment order under the Mental Health Act involved multiple decision-makers applying specialist medical criteria — making any conclusion about its availability inherently speculative.
On appeal ground 3(a), the Court agreed with the primary judge that the Tribunal’s decision was not legally unreasonable. Having found as a fact that the appellant’s risk factors materialised outside a structured custodial or hospital environment, the Tribunal was not required to speculate about whether community-based alternatives might provide an equivalent level of control. The facultative provisions relied on by the appellant (ss 33(2A)(a) and 40A of the AAT Act) could only operate once the premise was established that community accommodation or inpatient orders were matters calling for the Tribunal’s attention — a premise the appellant had not made out. No order as to costs was made.
Key Takeaways
- A tribunal reviewing a protection visa refusal under s 36(1C)(b) of the Migration Act is not required to make inquiries about community accommodation options where the evidence before it shows that only custodial or inpatient settings have been capable of controlling the applicant’s risk factors.
- The duty to make obvious inquiries about critical facts (from SZIAI) does not extend to speculative or multi-step contingencies — here, the availability of suitable community housing or an inpatient treatment order was not easily ascertainable and was beyond reasonable contemplation.
- An unrepresented applicant’s inability to articulate claims does not, by itself, obligate the Tribunal to engage in constructive or creative activity to build claims not apparent on the face of the material; however, courts will scrutinise the record closely for claims that do clearly emerge.
- Facultative information-gathering powers under the AAT Act and Migration Act are only triggered once it is first established that the subject-matter of the proposed inquiry is relevantly before the Tribunal — they do not independently create an obligation to investigate.
Why It Matters
This decision clarifies the limits of a tribunal’s inquisitorial duty in protection visa proceedings involving the “danger to the community” exclusion. It confirms that while tribunals must address claims and issues clearly arising from the material before them — including where applicants are unrepresented — they are not obliged to pursue lines of inquiry that require speculation about multi-step contingencies or that depend on creative construction of a case the applicant has not advanced. Practitioners advising clients facing s 36(1C)(b) refusals should ensure that any evidence about available community support, structured housing, or mental-health treatment orders is placed squarely before the tribunal, since the Full Court has confirmed that the onus to surface such material rests primarily with the applicant.
The case also illustrates the difficult intersection of migration law and mental-health vulnerability. The appellant — described by the sentencing Magistrate as needing “a safe place where he can receive medical care and free board and accommodation” — was found by the Tribunal to present an extreme risk of reoffending, yet the Full Court upheld that finding without requiring the Tribunal to investigate whether existing welfare or mental-health systems could have managed that risk. The decision may prompt advocacy for procedural reforms to ensure the most vulnerable unrepresented applicants receive adequate support in proceedings that carry life-altering consequences.