By Dan Star KC
Administrative law/migration law
Protection visa – Identity evidence
In LPDT v Minister for Immigration and Citizenship [2026] FCA 332 (24 March 2026), the Court determined an appeal from a decision of the Federal Circuit and Family Court (Div 2), where the primary judge dismissed a review application.
The former Administrative Appeals Tribunal (Tribunal) had affirmed the decision not to grant the appellant a protection visa, primarily because it did not accept that the appellant was who he claimed to be.
The appellant made three arguments in the appeal:
1. The Tribunal “failed to consider an essential integer” of the appellant’s claims or evidence supporting that claim, “namely that he was able to previously avoid detection by Vietnamese authorities because he crossed the land border into Vietnam”, while now “he would be detected at the airport if he were removed from Australia” (appeal grounds 1 and 1A) (at [2]). This ground was rejected on the basis that the Tribunal’s reasoning made it unnecessary for it to refer to this claim. Hill J held it was “not necessary for the Tribunal to refer to the claim about how the Appellant had managed to enter Vietnam (and the supporting evidence)” because the Tribunal rejected the factual premise that the appellant “was the subject of an arrest warrant at all” (at [29]).
2. The Tribunal failed to consider various material provided by the appellant that, if accepted, corroborated his claimed identity (appeal ground 2) (at [2]). This evidence included:
- a fingerprint analysis report
- translated statements from six members of the appellant’s family
- Vietnamese birth certificates of the appellant’s children, naming the appellant as their father
- a family record book, naming the appellant
- a translated Vietnamese missing person certificate naming the appellant (at [7]).
The Court acknowledged the case law that, “[i]n principle, it is possible that a visa applicant’s credibility could be so weakened that the decision-maker may well treat what is proffered as corroborative evidence as of no weight because ‘the well has been poisoned beyond redemption’ … However, in practice, a decision-maker is likely to commit jurisdictional error if it fails to give weight to apparently supporting material from an independent source, without explaining why that material has not been preferred” (at [33]). Hill J held that, in this case, the Tribunal’s reasoning did not provide any reasons for rejecting the apparently corroborative identity evidence provided by the appellant (at [34]). The Court allowed the appeal based on appeal ground 2.
3. The Tribunal’s reasons for not accepting that the appellant is the person he claimed to be were illogical or irrational, particularly the Tribunal’s reliance on “documented inconsistencies” in the appellant’s identity (appeal ground 3). This ground was rejected by the Court (at [40]–[45]).
Criminal law/administrative law
Interim control order application – threshold of risk – conditions
In Staunton v MHK [2026] FCA 546 (4 May 2026), the Court heard an application for an interim control order (ICO) in relation to MHK, who was soon to be released from prison after serving 11 years for a terrorism offence.
MHK pleaded guilty in 2016 to a charge of doing an act in preparation for, or planning, a terrorist act, contrary to s101.6(1) of the Criminal Code (at [30]). The offending occurred when MHK was aged 17 years.
The order, made under s104.4 of the Criminal Code, would impose conditions on MHK for 12 months following his release, which included requiring him to wear an electronic monitoring device and enabling the Australian Federal Police to monitor his communications and internet usage.
The main question to be determined was whether the Court was satisfied on the balance of probabilities that the conditions proposed in the draft ICO were reasonably necessary, as well as reasonably appropriate and adapted, for one of the purposes under s104.4(1)(d) of the Criminal Code (at [2]). The two key issues were:
- “whether there is a real or ongoing risk of MHK committing a terrorist act (or providing support for or facilitation of a terrorist act, or of the engagement in a hostile activity in a foreign country) on his release, if an ICO is not made” (at [42a])
- “whether the proposed conditions (individually and in combination) are a proportionate means of addressing that risk, having regard also to their impact on MHK” (at [42b]).
The Court summarised the general principles for the making of an ICO (at [22]–[27]). Section 104.4 does not contain an express threshold of risk. However, MHK correctly accepted “that the notion of risk is inherent in the requirements of ss104.4(1)(c) and (d) …” (at [24]).
Hill J accepted MHK’s submission that “it is not enough to point to a merely theoretical possibility; at the same time, the test of real and reasonable risk, or ongoing risk, does not require the Court to be in a position to identify with specificity what the person will do if a control order [or ICO] is not made …” (at [25]).
As to whether there was a real on ongoing risk, the Court held that the circumstances of MHK’s offending “strongly support the need for some sort of supervisory controls being placed on MHK once he is released. Given those circumstances, the Court would require a high degree of assurance that there was no longer a real or ongoing risk of MHK reverting to the behaviours and attitudes that led to his original offending …” (at [62]).
MHK gave evidence by affidavit. The Court accepted the genuineness of his statements in his affidavit as a statement of his current thinking. “However, this does not mean that the risk of backsliding was only a ‘theoretical possibility’” (at [65]). Further, MHK’s behaviour is, “of necessity, untested in the community” (at [66]). Hill J accepted MHK has demonstrated positive behaviours, particularly moving away from extremist thinking (at [77]). However, the Court concluded that “there is a real and ongoing risk of MHK committing a terrorist act if he is released without some form of supervisory controls” (at [78]).
The Court said:
“Given the severity of his offending (admittedly now some time ago), the level of risk that exists is sufficient to justify controls being placed on him for the first 12 months of his re-entry into the community. If the Applicant applies for the ICO to be confirmed, MHK will have the opportunity to give evidence about his time in the community then” (at [79]).
A second hearing was listed to be heard in August 2026 as to whether the ICO should be confirmed.
Practice and procedure/appeals
Sex discrimination – leave to intervene or appear as amicus
In Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64 (15 May 2026), the Full Court heard an appeal that involved the construction and application of provisions of the Sex Discrimination Act 1984 (Cth).
The Sex Discrimination Commissioner was granted leave to appear as amicus curiae on the appeal and cross-appeal (at [6]). The Full Court determined several other applications for leave to intervene and appear as amicus curiae.
After addressing the relevant principles (at [173]), Perry J (with whom Abraham and Kennett JJ agreed at [255]) gave reasons:
- for dismissing the applications by the Australian Christian Lobby to appear as amicus and the Free Speech Union for leave to intervene or appear as amicus (at [174]–[180])
- for granting leave to the Lesbian Action Group to intervene subject to certain conditions (at [181]–[185])
- for granting the application by Equality Australia to intervene on a limited basis (at [186]–[188]).
