Three decisions handed down between 28 September and 5 October 2026 share a theme. In each, the Tribunal reached a conclusion it was entitled to reach, but got there in a way the law does not allow. The Federal Court and the Federal Circuit and Family Court sent all three back. This article explains each in plain English and shows how it affects people in the same position.
All three are written from the Migration Institute of Australia’s summaries in MIA Notices 20 and 22 of 2026. The judgments themselves were not publicly accessible when this article was written.
NKHH: giving the consequences no weight, for a circular reason
NKHH v Minister for Immigration and Citizenship [2026] FCA 1422 was decided by Justice Shariff on 28 September 2026. A South Sudanese citizen’s humanitarian visa had been mandatorily cancelled on character grounds. He asked for the cancellation to be revoked, and the Tribunal refused.
Direction 110 requires the decision maker to consider the legal consequences of not revoking. The Tribunal recognised them: continued detention, liability to removal, no further visa except a protection visa, and the special return criteria. Then it gave those consequences no weight at all. Its only reason was that removal and exclusion are what the legislation intends.
The Court held that reasoning was circular. The legal consequences exist because the statute creates them. If that fact alone could strip them of weight, the consideration would have no content. The error was not a failure to consider the consequences. It was the reason given for giving them nothing. The decision was quashed and sent back, with costs against the Minister.
What it means
A decision maker decides how much weight the legal consequences deserve. What it cannot do is give them none because the law intended them. Anyone reading an adverse revocation decision should look at the reason attached to that consideration. If the reason is the circular one, there is a ground.
AVG26: removal to Nauru had to be considered
AVG26 v Minister for Immigration and Citizenship [2026] FCA 1457 was decided by Justice Wheelahan on 5 October 2026. An Iranian citizen with a protection finding had his protection visa refused on character grounds. The Minister had applied for a Nauruan visa for him and told the Tribunal he was liable to removal there if it was granted.
The Tribunal treated removal to Nauru as not a direct or immediate consequence of its decision, and did not assess what that removal would mean for him.
The Court held that Direction 110 contains no such limit. Liability to removal is the first consequence the Direction names, and removal to Nauru was not so remote that it could be left out. The Tribunal had to consider the harm. There was a realistic possibility the decision could have gone the other way. The decision was quashed, with costs.
What it means
Where a third country removal is a real prospect, evidence of what it would involve belongs in front of the decision maker. Direction 123, which replaces Direction 110 on 31 October 2026, says this expressly for people who cannot be removed to their home country, as our guide to Direction 123 explains.
Hassan: dismissed for a missed form, without being asked
Hassan v Minister for Immigration and Citizenship [2026] FedCFamC2G 1952 was decided by Judge McCabe on 2 October 2026. A student visa applicant was directed to return a form within 28 days and did not. A registrar dismissed his review for non compliance without contacting him. A member then confirmed the dismissal because he had not applied for reinstatement within 28 days.
The Court held that before dismissing for non compliance, the Tribunal must consider whether a reasonable time has passed and whether dismissal is the right course, and it cannot do that without at least inviting the applicant to respond. The direction had only warned that dismissal was possible. It was not a final deadline order. Dismissal without a hearing or a show cause step was procedurally unfair. Both decisions were quashed and the Tribunal was directed to deal with the non compliance according to law.
What it means
A review dismissed for a missed form, with no chance to explain, may be open to challenge even where no reinstatement application was made. That said, the deadlines are real. The safe course is to ask for an extension in writing, with reasons, before the date passes.
Three situations
A long term resident refused revocation after a prison sentence
The decision lists detention and removal as consequences, then says they carry no weight because that is what the Act intends. On NKHH, that is a reviewable error, and the time limit for judicial review runs from notification.
A person with a protection finding facing a third country
The Department has named a country it may send the person to. On AVG26, the Tribunal must consider what removal there would mean. Country evidence, medical evidence and family evidence about that country should be put on the record, not held back because removal depends on another government’s decision.
A student whose review was dismissed over paperwork
He moved house, missed the form, and learned of the dismissal after the reinstatement window closed. On Hassan, the dismissal itself may be challenged. The record of what the Tribunal sent, and when, is the first thing to obtain.
Our articles on the Administrative Review Tribunal and on a Tribunal that promised a letter and never sent it cover related ground.
Frequently asked questions
Can the Tribunal give the legal consequences of a decision no weight?
It decides the weight, but in NKHH the Federal Court held it cannot give them none on the basis that the statute intended them. That reasoning is circular and legally unreasonable.
Must the Tribunal consider removal to a third country?
In AVG26 the Court held it must, where removal there is a real prospect. The Direction does not limit the consequences to direct or immediate ones.
Can a review be dismissed for a missed deadline without a hearing?
In Hassan the Court held that dismissal without at least inviting the applicant to respond was procedurally unfair and an arbitrary exercise of the power.
Did any of the three applicants win their visa?
No. In each case the decision was quashed and the matter sent back to the Tribunal to be decided again according to law.
Sam Kanjo, Migration Lawyer, Skyline Migration Lawyers, Melbourne.
Sources: NKHH [2026] FCA 1422, AVG26 [2026] FCA 1457 and Hassan [2026] FedCFamC2G 1952, as summarised in MIA Notices 20 and 22 of 2026.
Does your decision read like one of these?
Judicial review time limits are short. Call 03 8108 8748 or email info@skylinemigrationlawyers.com.au with the decision record.
This article is general information only. It is not legal advice. Outcomes depend on the facts of each case. Please seek advice about your own circumstances before you act.
