Federal Court of Australia

RCLN v Minister for Immigration and Citizenship [2025] FCAFC 113

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The appellant is to pay the First Respondent’s costs as agreed or assessed save for those costs occasioned by the delay in the commencement of the hearing of the appeal on 19 August 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This is an appeal by the appellant, RCLN, against the primary judge’s refusal to set aside a decision of the former Administrative Appeals Tribunal refusing to set aside the Minister’s decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of his visa (J). Section 501CA(4) empowers the Minister to revoke a cancellation decision if the person makes representations and the Minister is “satisfied … that there is another reason why the original decision should be revoked”, even if the person does not pass the character test.

2    The Minister filed written submissions on 22 July 2025 in accordance with the orders made by the Registrar on 23 August 2024. The appellant, who was represented by pro bono counsel at trial but did not have legal representation on the appeal, did not file written submissions in accordance with those orders. However, he made oral submissions at the hearing of the appeal assisted by an interpreter in Farsi and English.

3    For the reasons set out below, the appeal should be dismissed and, subject to one caveat explained later in these reasons, an order for costs should be made in favour of the Minister,.

2.    BACKGROUND

4    The appellant is a citizen of Iran who arrived in Australia in 1990 at the age of 18. On 7 October 2016, the appellant was granted a Return (Residence) (Class BB) Five Year Resident Return (subclass 155) visa.

5    On 21 July 2021, the appellant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act (cancellation decision), after the appellant was convicted of domestic violence and other offences for which he had been sentenced to an aggregate term of imprisonment of 16 months: J[2].

6    Following the cancellation of his visa, the appellant was detained at Villawood Immigration Detention Centre from 1 November 2021.

7    On 15 November 2022, a delegate of the Minister made a decision under s 501CA(4) of the Migration Act not to revoke the cancellation decision (non-revocation decision): J[3].

8    On 22 December 2022, the Full Federal Court held that an aggregate sentence of imprisonment for 12 months or more imposed for multiple offences did not constitute a “sentence[] to a term of imprisonment of 12 months or more” for the purposes of s 501(7)(c) of the Migration Act and thus did not engage the duty to cancel a person’s visa imposed by s 501(3A): Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177 (Pearson (FCAFC)).

9    On 20 January 2023, applying the decision of the Full Court in Pearson (FCAFC), the Tribunal found that the cancellation decision was not legally effective: RCLN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 35.

10    Following the Pearson (FCAFC) decision the appellant was released into the community in January 2023: J[21].

11    On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into effect. Section 4 of the Aggregate Sentences Act purported to retrospectively validate certain “thing[s] done” based on aggregate sentences being taken into account, including the cancellation decision in respect of the appellant.

12    On 21 February 2023, the appellant reapplied for review of the non-revocation decision.

13    On 8 May 2023, the Tribunal held a hearing at which the appellant was legally represented and gave evidence via Microsoft Teams. On 26 May 2023, the Tribunal affirmed the non-revocation decision: RCLN and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1335 (AAT Decision).

14    The appellant sought judicial review of the AAT Decision in the Federal Court on various bases, including legal unreasonableness, denial of procedural fairness, failure to consider the impact of the decision on victims, a misunderstanding of the law, and double counting the appellant’s criminal offending: J[7]. On 7 August 2024, the primary judge handed down reasons for dismissing each ground of review.

15    On 4 December 2024, the High Court held that the construction of s 501(7)(c) adopted in Pearson (FCAFC) which excluded aggregate sentences of 12 months or more from its scope, was incorrect: Pearson v Commonwealth [2024] HCA 46; (2024) 99 ALJR 110 (Pearson (HCA)). Consequently, the High Court found it unnecessary to determine the validity of the Aggregate Sentences Act, as its provisions were not engaged (at [63]).

16    The effect of the High Court’s judgment in Pearson (HCA) is that the cancellation decision, the non-revocation decision, and the AAT Decision were not invalid by reason of aggregate sentences having been taken into account. This is the same footing on which the primary judge approached the matter, albeit that the primary judge assumed (prior to the decision in Pearson (HCA)) that the retrospective validity provisions in the Aggregate Sentences Act applied.

3.    NO ERROR IS ESTABLISHED IN THE PRIMARY JUDGE’S DECISION

3.1    The issues

17    The appellant, by his then pro bono counsel, contended before the primary judge that the Tribunal’s decision was affected by jurisdictional error on five alternative grounds and was therefore invalid. The only ground pressed by the appellant in his notice of appeal is the first of these grounds, namely: the primary judge erred in failing to find that the Tribunal’s reasoning process was legally unreasonable, illogical or irrational insofar as it found that it was more probable than not that the appellant would reoffend “if he is released into the community”, in circumstances where he had been released from immigration detention and was in the community at the time of the Tribunal’s decision: J[7(1)].

18    The alleged error relates to the Tribunal’s reasons at [244] of the AAT Decision under the heading “Likelihood of engaging in further criminal or other serious conduct”, which the Tribunal is required to take into account under paragraph 8.1.2 of “Direction No. 99: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” as part of its consideration of the need to protect the Australian community (Primary Consideration 1). Paragraph 8.1.2(2)(b)(ii) relevantly provided that “in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to … evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence”.

19    At [244], the Tribunal found that:

Based on the Applicant’s history and the factors set out above I consider that it is more probable than not, that the Applicant will reoffend if he is released into the community. It is likely, based on his history, that he may also return to drug use. This would further elevate his prospects of reoffending significantly.

(Emphasis added.)

20    However, having concluded that the Tribunal clearly understood that the appellant was in the Australian community, the primary judge was not prepared to infer that the Tribunal had overlooked this fact at [244] of its reasons, despite referring to the appellant’s release into the community in hypothetical terms at this point of its reasoning. Rather, the primary judge held that “on a fair reading of the Tribunal’s reasons as a whole, the Tribunal was clearly cognisant of the fact that the applicant was in the community at the time of its decision”, and that it was “not open to treat the finding at para [244] of the [AAT Decision] as having been made in ignorance of the applicant’s situation”: J[40].

21    The appellant’s notice of appeal alleges that the primary judge fell into error in that:

(a)    the primary judge’s interpretation was “unsupported by the text” of [244] of the AAT Decision, which “clearly states that the appellant is more likely than not to reoffend if released and may return to drug use, further increasing the risk of reoffending”, and

(b)    the AAT Decision at [244] “specifically addressed the risk of future offending”, unlike at [5], [199], [201] and [281]. Additionally, due to the Tribunal’s error, the primary judge did not find that the Tribunal had failed to lawfully address the mandatory consideration in paragraph 8.1.2(2) of Direction 99.

3.2    Did the primary judge err?

3.2.1    Consideration of the appellant’s oral submissions

22    The appellant’s oral submissions largely did not address the issues raised by his notice of appeal. Rather, they were primarily a challenge to the merits of the Tribunal’s decision, as is understandable for an unrepresented person without legal training. In particular, the appellant’s submissions focused upon the impact that the revocation of his visa may have upon his children in Australia, the risks which he said he would face of death if he were returned to Iran, and his belief that he would not reoffend. However, these are not matters which the primary judge or this Court on appeal can take into account in deciding whether the Tribunal’s decision is invalid, even if another decision-maker might have taken a different view of the evidence and reached a different decision.

23    At the hearing of the appeal, the Court drew the appellant’s attention to the issues raised by his notice of appeal and explained the limited nature of the role of the primary judge in determining the appellant’s application for judicial review and the Full Court on the appeal from the primary judge’s decision. Specifically, the primary judge’s jurisdiction was confined to deciding whether the Tribunal’s decision not to revoke the cancellation of the appellant’s visa was made lawfully under the Migration Act. In other words, the primary judge’s task was to decide whether the Tribunal’s decision is invalid by reason of a jurisdictional (that is, a material legal) error.  The Full Court on the appeal in turn must decide whether the primary judge wrongly held that there was no jurisdictional error.  The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria under the Migration Act by which to determine whether to revoke the cancellation decision or if it failed to take into account a mandatory relevant consideration in making that decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court).  However, the Court has no jurisdiction to revoke the cancellation decision on the merits or to correct any mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J).

24    The appellant also made submissions regarding the difficulties which he faced in making submissions on the appeal after pro bono counsel ceased acting for him and requested that the hearing be adjourned in order to allow new pro bono counsel to be appointed.

25    The Court readily understands the difficulties which individuals without legal training are likely to confront in pursuing legal remedies through Australian courts. Those difficulties were, no doubt, exacerbated by the fact that the appellant was in immigration detention at the time of lodging his appeal, and in prison for the two weeks prior to the hearing of the appeal, as he submitted.

26    However, there is no right to legal representation by pro bono counsel and the Court did not consider that the appeal had sufficient merit to warrant an adjournment of the hearing in order to make a further referral in an attempt to find new pro bono counsel. The unfortunate reality is that litigants in similar circumstances to those confronting the appellant appear every day in this and other courts. The obligation upon the Court in such cases is to provide an interpreter for the person, where necessary, and to take steps to inform the person about such matters as the nature of the proceeding before the Court and relevant procedural and evidential matters. Further, the hearing of the appeal was initially listed for 28 July 2025. The Court was advised on 23 June 2025 that the appellant’s pro bono counsel sought permission to cease providing legal assistance. Permission was given by a Registrar pursuant to r 4.16 of the Federal Court Rules 2011 (Cth). On 30 June 2025, the Minister asked that the appeal be relisted in order to allow the Minister to file his submissions first, and to afford the appellant time to respond, in line with the original orders made by the Registrar on 23 August 2024 which covered the possibility that the appellant was (or may become) unrepresented. On 8 July 2025, the parties were notified that the appeal had been relisted for 19 August 2025, following the appellant’s confirmation by telephone that he had no objections to the matter being relisted for this purpose. In all of the circumstances, therefore, the Court considered that the appellant had had a sufficient opportunity to prepare for the hearing and make submissions, and did not consider that it was in the interests of justice to adjourn the hearing of the appeal for a second time.

3.2.2    Consideration of the issues raised by the appellant’s notice of appeal

27    The starting point in considering the grounds of appeal is, as the Minister submitted, that the Tribunal’s reasons must be read fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]–[60]. Thus, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287)). As such, “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]–[15] (Allsop J (as his Honour then was)).

28    When the Tribunal’s reasons are read in accordance with these principles, it is clear that the primary judge did not fall into error.

29    First, it is apparent from the Tribunal’s reasons that it appreciated that the appellant had been released from immigration detention and was residing in the community. In particular:

(1)    At [5], the Tribunal stated: “the Applicant is in the community and has been since January 2023, notwithstanding that his visa has been cancelled. This seems to be a product of the Applicant having been an immigration detainee whose status was affected by the decision in Pearson v Minister for Home Affairs and the subsequent legislative changes precipitated by that decision.”

(2)    At [194], the Tribunal stated: “The Applicant was released from Immigration detention as a result of the Full Federal Court’s decision in Pearson (supra). Although he does not presently hold a valid visa, he is currently living in the community.”

(3)    At [199], the Tribunal said of the Appellant's drug use: “The Applicant claims that he has not resumed using [ice] since 2021. Since he has been in the community recently, he has been ‘a couple of times’ for counselling.”

(4)    At [201], the Tribunal stated: “the Applicant has been working as an employee fencer and landscaper since being released into the community earlier this year.”

(5)    At [281], the Tribunal stated: “the Applicant is not detained at present and has not been since January 2023.”

30    Read in the context of these findings by the Tribunal, the primary judge correctly held at J[40] that:

The preferable interpretation, if not the only plausible interpretation, of [paragraph [244] of the AAT Decision] is that the Tribunal was referring to the likelihood of the [appellant] reoffending if he were permitted to remain in the community as a lawful non-citizen. It is not plausible that the Tribunal overlooked or “forgot” that the [appellant] had been in the community when it addressed Primary Consideration 1 [of Direction 99].

31    Secondly, the related error alleged in ground 1 of the appeal concerns the Tribunal’s application of paragraph 8.1.2(2) of Direction 99, which reads that:

In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

…

b)     the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen re-offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(Emphasis added.)

32    Contrary to the requirement to give weight to the consideration in paragraph 8.1.2(2)(b)(ii) of Direction 99, the appellant alleged before the primary judge that the Tribunal had failed to give weight to time spent in the community since his most recent offence. However, the primary judge held at J[42]-[43] that he was not prepared to infer that the Tribunal failed to give weight to the time spent by the appellant in the community when taking into account the evidence of his rehabilitation, given that:

(1)    the Tribunal had regard to a risk assessment by New South Wales Corrections and referred to evidence of the appellant’s attempts at rehabilitation; and

(2)    as at the time of the Tribunal’s decision, the appellant had only been released from immigration detention as a result of the decision in Pearson (FCAFC) for a “relatively brief period” (i.e. January 2023 to 26 May 2023).

33    In other words, there was no failure by the Tribunal to consider the appellant’s attempts at rehabilitation, to which regard was expressly had. However, the proper inference to be drawn from the Tribunal’s failure to have express regard to the relatively short period that the appellant had been released from immigration detention after his most recent offending and the decision in Pearson (FCAFC) was that it was not material to the Tribunal’s reasons: see e.g. Minister for Home Affairs v Ogawa [2019] FCAFC 98; (2019) 269 FCR 536 at [103] (Davies, Rangiah and Steward JJ). There is no error evident in that line of reasoning by the primary judge.

4.    CONCLUSION AND ORDERS AS TO COSTS

34    For the reasons set out above, the appeal must be dismissed. As the Minister has been wholly successful in resisting the appeal, the appellant is to pay the Minister’s costs as agreed or assessed, subject to one caveat. The appeal was originally listed for hearing at 10:15am on 19 August 2025. When the Court was advised that the appellant was not present and the Minister advised that that may have been because the appellant was in prison, the hearing was delayed while enquiries were made to locate the appellant. Once the Minister identified the place where the appellant was being held in custody, orders were made in Chambers under s 77(1) of the Crimes (Administration of Sentences) Act 1999 (NSW), for the appellant to be produced to the Court by audiovisual link later that morning. That order was accompanied by a non-publication order made pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) with respect to the appellant’s name in order to protect his identity, consistently with the non-publication of his name otherwise in connection with the proceeding. The Minister appropriately accepted that he had been aware that the appellant may have been in prison some time prior to the hearing and that this was a matter which could have been brought to the Court’s attention in advance of the hearing and could have been the subject of inquiry by the Minister prior to the hearing. The failure to do so resulted in wasted time and costs. As such, the Minister again appropriately did not contend that he should receive costs occasioned by reason of the delay in commencing the hearing of the appeal on 19 August 2025, in the event that he was successful in the appeal, as has been the case.

Associate:

Dated:    26 August 2025