XKTK distinguished?

At the time of the Tribunal's decision under s 501CA(4) of the Migration Act 1958 (Cth), the Applicant was the holder of a BVR visa that was issued on the basis that he would otherwise be subject to indefinite detention, which would be against the principles discussed in NZYQ.

The Federal Court (FCA) summarised one of the Applicant's grounds of judicial review as follows:

88    In particular, it was said that in applying the Direction [i.e., Direction 110], the Tribunal concluded that the protection of the Australian community supported non-revocation of the cancellation of the visa, without addressing how revocation or non-revocation would impact the safety of the community in circumstances where the applicant would be released into the community whatever the outcome (said to be 'the central issue'). It was submitted that the relevant factors in the Direction were predicated on a critical assumption, namely that cancellation of the person's visa would result in his removal from Australia and his detention pending removal. However, in the applicant's particular case, that assumption did not pertain. In those circumstances, what was required as a matter of rationality and logic, so it was submitted, was for consideration to be given to what was likely to occur in relation to the conditions that may apply to his release. It was said that this would have led, amongst other things, to a comparison between the nature of the medical treatment that he would receive if his Global Special Humanitarian visa was reinstated and the extent to which he could access appropriate medical treatment if that were not the case. This was said to be significant because of his mental health and the importance for his ongoing behaviour (including his likelihood of re-offending) of receiving access to appropriate treatment.

Some of the questions to the FCA were as follows:

Question 1: Where it appears that a question asked of the person may give rise to a legitimate claim of privilege against self-incrimination or legal professional privilege, should the Tribunal 'advise' a person of their right to claim the privilege?

Question 2: In every instance where the Tribunal give a warning, "must take detailed steps to ensure that the applicant understands the purport of the warning"?

Question 3: Can it be said that, "to the extent that the applicant sought to demonstrate, based upon expert opinion, that the applicant's mental state at the time was such that he did not understand then evidence to that effect was required to be adduced on the application for review and that could not be done simply by referring to the contents of documents before the Tribunal that were in evidence as part of the record of events before the Tribunal"?

Question 4: Did the Tribunal have to "ensure that the explanation of the privilege given to the applicant was given in a way that had due regard to the evident capacity of the applicant to understand the explanation"?

Question 5: Must an explanation about the privilege "be given in circumstances that allowed the applicant to avail himself of the privilege if he chose to do so"?

Question 6: Can it be said that "an explanation given to a person who required the assistance of an interpreter to understand the Tribunal proceedings in circumstances where the explanation was not interpreted would not be a fair procedure"?

Answer: Yes.

Question 7: Can it be said that it was "not necessarily irrational or illogical to consider the provisions of the Direction on the basis that cancellation of the applicant's Global Special Humanitarian visa would remove his entitlement to stay in Australia thereby requiring his removal, provided the Tribunal also separately and sufficiently brought to account the additional consideration relevant to the applicant, namely that, in all likelihood, he would remain in Australia under different visa arrangements"?

Question 8: Would consideration of the protection of the Australian community from harm "have required deliberation as to whether the BVR conditions may make the applicant a greater risk to the Australian community than being released as the holder of a Global Special Humanitarian visa"?

Question 9: If the answer to Question 8 is 'yes', can it be said that "matters such as the effect on the applicant’s medical treatment and the likelihood of his re-offending of being in the community on a BVR rather than on a Global Special Humanitarian visa are not addressed"?

Question 10: Will part of the process of determining whether there is legal unreasonableness involve a consideration of the nature of the repository of the power?

Question 11: If the answer to Question 10 is 'yes', it it relevant that the AAT was "an independent statutory Tribunal whose members were appointed for the expertise in decision-making"?

Question 12: Are the answers to Questions 10 and 11 the same in relation to irrationality and illogicality, as irrationality and illogicality are a dimension of unreasonableness?

Question 13: Is an error in the form of legal unreasonableness in the decision material, and thus jurisdictional, by definition?

Question 14: Should the Full Court's decision in XKTK and the High Court's decision Plaintiff S22/2025 be distinguished?

Question 15: If the matter is remitted to the Tribunal for consideration according to law, will there need to be a fresh hearing?

The FCA answered those questions as follows: