Federal Court of Australia

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    This is an appeal from orders of a judge of this Court dismissing the appellant’s claim that a decision of the Minister acting personally to set aside a decision of the Administrative Appeals Tribunal and to cancel the appellant’s visa was affected by jurisdictional error: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (J).

2    The appellant is a citizen of Sri Lanka who was granted a Class XE Subclass 790 Safe Haven Enterprise Visa in June 2022, and he is the subject of a protection finding in relation to Sri Lanka.

3    In January 2023, the appellant was convicted of a sexually based offence involving a child. As a result, on 3 February 2023 the appellant’s protection visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the ground that the delegate was satisfied that the appellant did not pass the character test: see s 501(6)(e) of the Act, which relates to sexually based offences against a child.

4    On 5 July 2023, a delegate of the Minister declined to revoke the cancellation of the appellant’s visa under s 501CA(4). That decision was set aside on 15 September 2023 on review by the Administrative Appeals Tribunal and in its place the Tribunal revoked the cancellation of the appellant’s visa.

5    On 8 November 2023, the High Court published orders, and then on 28 November 2023 its reasons, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ). The effect of NZYQ is that detention of an unlawful non-citizen is authorised by ss 189(1) and 196(1) of the Act only if there is a real prospect of removal becoming practicable in the reasonably foreseeable future.

6    On 14 June 2024, the Minister set aside the decision of the Tribunal pursuant to s 501BA(2) of the Act and cancelled the appellant’s visa. Section 501BA(2) relevantly provided that the Minister acting personally may set aside a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) to revoke a decision under s 501(3A) to cancel a visa that has been granted to a person. Two jurisdictional facts enlivened the power. In the case of the appellant, the first was satisfaction by the Minister that the appellant did not pass the character test. The Minister’s satisfaction in this regard is not in issue. The second jurisdictional fact was the Minister’s satisfaction that the cancellation of the appellant’s visa was in the national interest.

7    At the time of the Minister’s decision, and given the protection finding in relation to Sri Lanka, there was no real prospect of removing the appellant from Australia to Sri Lanka in the reasonably foreseeable future: see s 197C. And because there was no real prospect of removal of the appellant to any other place becoming practicable in the reasonably foreseeable future, detention of the appellant was not authorised by the Act: NZYQ at [44]–[45].

The application before the primary judge

8    Before the primary judge, the appellant claimed that the Minister’s reasons supporting his conclusion that cancellation of the appellant’s visa was in the national interest were unreasonable, illogical, or irrational. At the heart of the appellant’s claim was that it was irrational or illogical for the Minister to conclude that the risk that the appellant posed to the community and community expectations weighed in favour of cancellation of his visa when the appellant would remain in the community. The primary judge rejected this claim, holding at J [48] that the Minister provided an intelligible justification for his conclusion by reference to community protection considerations and community expectation considerations that it was in the national interest to cancel the appellant’s visa.

The appeal

9    The appellant challenges the primary judge’s decision where on this appeal by way of rehearing the Court is in as good a position as the primary judge to determine the appellant’s claims of legal unreasonableness, where the correctness standard of appellate review applies, and where the burden on the appellant is to show that the primary judge’s orders were wrong because appeals are against orders and not reasons: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [18] (Kiefel CJ), [20] (Gageler J), [85] and [117] (Nettle and Gordon JJ), [154]–[155] (Edelman J); AZC20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [34] (Kiefel CJ, Gordon and Steward JJ).

10    At the hearing, the appellant advanced five grounds of appeal. Grounds of appeal 1 to 3 essentially advance the same claims that were advanced before the primary judge while critiquing some aspects of the primary judge’s reasons for rejecting the claims.

11    The fourth and fifth grounds raised claims of jurisdictional error that had not been advanced before the primary judge. The Court heard full argument on those grounds but reserved on the question whether leave to advance them should be given. After the appeal was heard and while the Court’s decision was reserved, the High Court published its decision in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 (Plaintiff S22). The Court gave leave on the papers to the parties to make submissions in writing in relation to Plaintiff S22. In supplementary submissions the appellant stated that in light of Plaintiff S22 he did not press his application to rely on the fourth and fifth grounds.

12    The appellant otherwise submitted that, in relation to his remaining grounds of appeal 1 to 3, Plaintiff S22 was distinguishable from the present case in several respects such that it does not bear upon the appellant’s arguments.

The legislation

13    The starting point in examining whether the appellant has made out his claims is the text, context, and object of the relevant provisions of the Migration Act. This is an important point, because it is within this legislative context that the Minister was satisfied that cancellation of the appellant’s protection visa was in the national interest. The task of the court requires that it assess the quality of the Minister’s exercise of power by reference to the source of the power in order to evaluate whether, as the appellant claims, the reasons given by the Minister did not support a lawful exercise of power having regard to the scope, purpose, and objects of the statutory source of the power: SZVFW at [78]–[80] (Nettle and Gordon JJ).

14    The object of the Migration Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). Amongst other things, to advance its object the Act provides for visas permitting non-citizens to enter or remain in Australia and provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act: ss 4(2) and (4).

15    Non-citizens within Australia, such as the appellant, are vulnerable to exclusion or deportation: see Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 29 (Brennan, Deane and Dawson JJ). In making provision for the cancellation of visas to make a person liable to be removed from Australia, the Act speaks to the national interest. Section 501BA(2) of the Act, which was the power exercised by the Minister to cancel the appellant’s visa, sits with a scheme of provisions that are concerned with the cancellation of visas of non-citizens where the Minister is satisfied that they do not pass the character test. It is one of several powers in the Act calculated to enable the Minister to determine which non-citizens should be permitted to remain in Australia.

16    One basis upon which a person may not pass the character test is because a court in Australia has convicted a person of one or more sexually based offences involving a child: s 501(6)(e). The Explanatory Memorandum to the Bill which led to the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), which inserted s 501BA, stated at [85] –

New subsection 501BA(4) of the Migration Act provides that the power under subsection 501BA(2) may only be exercised by the Minister personally. The intention is that this is a personal power of the Minister to ensure that, despite a decision of a delegate or tribunal to revoke a visa cancellation, the Minister retains the ability in exceptional cases, where it is in the national interest, to remove a person who does not pass the character test from the community.

(Emphasis added.)

17    The purpose of the exercise of the Minister’s power under these provisions is to ensure that a person who fails the character test is liable to be removed from Australia: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [41] (Gummow and Hayne JJ). In furtherance of that purpose the cancellation or cessation of a visa operates on the status of a person and is a necessary step towards achieving removal: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [47]–[48] (Kiefel CJ, Bell, Keane and Edelman JJ).

18    It is wrong to assume, as the appellant’s submissions seem to do, that within the scheme of the Act cancellation of a person’s visa as a necessary step towards removal can only lawfully occur when removal is reasonably practicable, either at the time of cancellation or in the reasonably foreseeable future. There are no express limitations to this effect, and no such limitation is to be implied. The purpose of cancellation may be met even though removal from Australia may not be reasonably practicable at the time the decision to cancel a visa is made. The Act and the Migration Regulations 1994 (Cth) contemplate and accommodate a situation where removal from Australia might not be reasonably practicable at the time a visa is cancelled, or in the reasonably foreseeable future, by providing for detention within the constitutional limits referred to in NZYQ until removal is effected. If detention is not authorised, the Act and regulations provide for bridging visas as identified below.

19    The Minister’s power under s 501BA(2) is a supervening power. It is exercisable in the national interest to override a decision of a delegate of the Minister or the Tribunal to revoke a decision under s 501(3A) to cancel a visa on character grounds. The following features of s 501BA(2) are relevant –

(1)    First, and as I have mentioned, the power is exercisable upon the Minister being satisfied of two matters: (a) that a person does not pass the character test; and (b) that cancellation of the visa is in the national interest. Upon being satisfied of these matters, the Minister has a discretion to cancel the visa: see in relation to the cognate provision in s 501A(2), Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 at [108] (Besanko J, with whom Allsop CJ, Kenny J, Kerr J and Charlesworth J agreed).

(2)    Secondly, the power is exercisable only by the Minister personally: s 501BA(4).

(3)    Thirdly, satisfaction that cancellation of the visa is in the national interest is a matter for the Minister.

(4)    Fourthly, the rules of natural justice do not apply: s 501BA(3).

(5)    Fifthly, the Minister must give the person written notice of the decision that, inter alia, sets out the reasons for the decision: s 501G(1)(e). However, a failure to give reasons does not affect the validity of the decision: s 501G(4); Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; 216 CLR 212 at [46] (Gleeson CJ, Gummow and Heydon JJ). Therefore, a failure to give adequate reasons that does not otherwise evidence jurisdictional error in the decision might entitle a person only to the remedy of mandamus.

(6)    Sixthly, unlike the powers of the Minister acting personally to refuse to grant or to cancel a visa pursuant to s 501(3) and s 501C(4), or to substitute a more favourable decision under s 501J(1), there is no requirement that the Minister cause notice of a decision under s 501BA(2) to be laid before each House of Parliament.

20    The appellant’s visa was a temporary protection visa which permitted him to remain lawfully within Australia for the term of the visa: see ss 35A(3A) and (3B) of the Act and clause 790.511 of Schedule 2 of the regulations. The appellant’s temporary protection visa also provided him with what was, in effect, a springboard from which he could apply for another temporary protection visa, or a Resolution of Status (Class CD) visa, which was a form of permanent visa: see clause 1127AA of Schedule 1 of the regulations. The primary judge referred to these features of the appellant’s protection visa at J [42]–[43].

21    The combined effect of s 48A and s 501E(2) of the Act was that upon cancellation of the appellant’s protection visa under s 501(3A), and later under s 501BA(2), the only visa for which the appellant could apply was the visa specified in the regulations for the purposes of s 501E(2), which was a Bridging R (Class WR) visa, application for which could be made upon the invitation of the Minister: reg 2.12AA. This class of visa is known as a “BVR”: see YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 419 ALR 457 (YBFZ) at [5], footnote (2) (Gageler CJ, Gordon, Gleeson and Jagot JJ). The Minister also has power under the regulations to issue a BVR without an application being made if the Minister is satisfied that removal from Australia is not reasonably practicable: reg 2.25AA(2); cf, s 45 of the Act. A BVR is a class of bridging visa which may be granted to eligible non-citizens under s 73 of the Act. For the purpose of the definition of “eligible non-citizen” in s 72 of the Act, reg 2.20(18) prescribes “a non-citizen if there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future”. It is in the nature of a bridging visa that it is effective during a specified period, or until a specified event happens: s 73.

22    Under reg 2.01(2), and the table set out therein, the BVR has one subclass, namely “Subclass 070 (Bridging (Removal Pending))”. Pursuant to clause 070.511 of Schedule 2 of the regulations, a bridging visa of this subclass ceases at the earliest of the following –

(i)    when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, stating that the Minister is satisfied that the holder’s removal from Australia is reasonably practicable;

(ii)    when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, stating that the holder has breached a condition to which the visa is subject;

(iii)    when the Minister grants the holder another Bridging R (Class WR) visa under regulation 2.25AB.

23    Therefore, a BVR would permit the appellant to remain in Australia, in effect, until it became reasonably practicable to remove him, and from the Minister’s perspective, a BVR would cease immediately upon the Minister giving notice that he is satisfied that removal is reasonably practicable.

24    At the time of the Minister’s decision to cancel the appellant’s visa under s 501BA(2) of the Act, Schedule 2 of the regulations provided for a number of conditions that were required to be imposed, and others that might be imposed on a BVR, depending upon the Minister’s state of satisfaction. The conditions provided for by the regulations were those referred to in subclauses 070.611(1)(a), 070.612A(1) and (2), 070.612B(1), 070.613 and 070.614 of Schedule 2 of the regulations. As to conditions that might be imposed, subclauses 070.612A(1)(a) and (d) in the form they took at the time of the Minister’s decision imposed conditions of curfew and the requirement to wear a monitoring device, “unless the Minister is satisfied that it is not reasonably necessary to impose that condition for the protection of any part of the Australian community”: see conditions 8620 and 8621, first introduced by s 13 of the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth).

25    The relevant regulations must be considered together with s 76E of the Act in the form it took at the time of the Minister’s decision. By operation of s 76E(2) of the Act, the rules of natural justice did not apply to a decision to grant a non-citizen a BVR with conditions prescribed for the purpose of s 76E(1)(a) where there was no real prospect of removal becoming practicable in the reasonably foreseeable future. For the purposes of s 76E(1)(a) of the Act, reg 2.25AD prescribed conditions that included the curfew (8620) and monitoring (8621) conditions. In place of the rules of natural justice, s 76E(3) provided that as soon as practicable after making the decision to grant a BVR with the prescribed conditions, the Minister was required to give notice to the non-citizen and invite the person to make representations as to why the visa should not be subject to one or more of the prescribed conditions. Under s 76E(4) of the Act, if the non-citizen made representations in accordance with the Minister’s invitation and the Minister was satisfied that the conditions were not reasonably necessary for the protection of any part of the Australian community, then the Minister was required to grant the non-citizen a second BVR that was not the subject of the relevant prescribed condition. Section 76E was amended in several respects following the decision in YBFZ.

26    Under the Act, a contravention of conditions of a BVR concerning the wearing of monitoring devices and remaining at a notified address between certain times of the day constituted an offence unless the person had a reasonable excuse: ss 76B, 76C, and 76D. The offences attracted a mandatory term of imprisonment of at least one year: s 76DA.

27    Subclauses 070.612A(1)(a) and (d) of the regulations were subsequently declared to be invalid by the High Court in YBFZ. Following the Court’s decision in YBFZ, subclause 070.612A(1) was substituted by a new clause effective 7 November 2024: Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth).

28    Subclause 070.612B, which was unaffected by YBFZ, was specifically directed to the conditions of a BVR where the holder had been convicted of an offence involving a minor or other vulnerable person, and it remains substantially in the same terms. It provided for detailed reporting and other conditions specified in visa conditions 8612, 8615, 8622, 8623 and 8626 of Schedule 8 of the regulations. By their terms, those conditions were directed to the risk that such a person would present to minors. For instance, conditions 8622, 8623, and 8626 provided –

8622 (1)    If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.

(2)    Subclause (1) applies:

(a)    whether the work or activity is for reward or otherwise; and

(b)    whether or not a working with children or vulnerable people check (however described) is required in relation to the work.

8623    If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.

...

8626    If the holder has been convicted of an offence involving a minor or any other vulnerable person, the holder must notify the Minister of any change in the following:

(a)    an online profile used by the holder;

(b)    a user name of the holder;

within 2 working days after the change occurs.

29    Under subclause 070.611(1)(a), a BVR was also subject to condition 8541, which required the holder of the visa to do everything possible to facilitate his or her removal from Australia and not attempt to obstruct efforts to arrange and effect such removal.

30    In summary, there were two significant features of a BVR that were not shared by the appellant’s cancelled protection visa. The first was that the BVR was susceptible to immediate cessation upon the Minister giving notice of his satisfaction that the appellant’s removal from Australia is reasonably practicable. This feature of the BVR sat with the statutory foundations under which a BVR may be issued. Those foundations were that, upon cancellation of the appellant’s protection visa under s 501(3A) and s 502BA(2) on character grounds, a BVR was the only form of visa for which the appellant could apply, and if the Minister determined himself to grant the visa without application, then under reg 2.25AA a condition for the grant of the visa was the Minister’s satisfaction that, at the time of the decision, removal from Australia was not reasonably practicable. Read together, the circumstances under which the BVR could be issued and the conditions to which a BVR was subject contemplated removal of the person at some future point in time, albeit that a BVR would be issued in circumstances where removal at the time of issue would not be reasonably practicable. It can therefore be seen that the terms of a BVR complement the object of cancellation of the visa of a person who fails the character test, which is to render the person liable to be removed from Australia.

31    The second feature of the BVR that was not shared by the appellant’s cancelled protection visa was that it was liable to be subject to conditions that included some that were specifically directed to the risk that a person posed as a person convicted of an offence involving a minor. Those conditions were in furtherance of the national interest in regulating the presence in Australia of non-citizens.

Principles relating to legal unreasonableness

32    The Minister’s satisfaction that cancellation of the appellant’s visa was in the national interest was a subjective jurisdictional fact. For the purposes of s 501BA(2), whether the Minister formed the requisite state of satisfaction may be characterised as a discretionary decision in the sense that it was evaluative and called for the formation of an opinion: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] (Gleeson CJ, Gaudron and Hayne JJ). The evaluative question whether cancellation of the appellant’s visa was in the national interest was largely a political question for the Minister to determine: see ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 (ENT19) at [93] (Gordon, Edelman, Steward and Gleeson JJ) and the cases cited at footnote (111). Considerations that might fall under the umbrella of the “national interest” may include the reasons for which the appellant failed to pass the character test: Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [78]–[80] (Gaudron J). And in relation to the Minister’s discretion under s 501BA(2) to cancel a person’s visa upon being satisfied that the person does not pass the character test and that cancellation is in the national interest, any and all considerations that might support the cancellation of the visa having regard to the reasons for which the person did not pass the character test may be relevant: ENT19 at [69] (Gordon, Edelman, Steward and Gleeson JJ).

33    The potential breadth of the national interest in the context of the Minister’s personal powers over visas is illustrated by the following observations of French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 (Plaintiff S297) at [18] –

In Hot Holdings Pty Ltd v Creasy (24) three members of this Court noted that “[i]t has been said that ‘the whole object’ of a statutory provision placing a power into the hands of the Minister ‘is that he may exercise it according to government policy’ (25)”. And where, as here, the criterion to be applied by the Minister requires the Minister to be satisfied that the grant of the visa is “in the national interest”, the decision-maker “may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister’s continuance in office” (26).

...

(24)    (2002) 210 CLR 438 at 455 [50] per Gaudron, Gummow and Hayne JJ.

(25)    Wade and Forsyth, Administrative Law, 8th ed (2000), p 464.

(26)    Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 455 [50] per Gaudron, Gummow and Hayne JJ.

34    However, although the national interest may be a broad canvas, in forming a state of satisfaction that cancellation of a visa is in the national interest, there are constraints on the Minister that arise by way of implication. The Minister’s state of satisfaction that cancellation of a visa is in the national interest must be formed reasonably, be formed in accordance with a correct understanding of the law under which the decision is made, and be untainted by a material breach of any other express or implied conditions of the decision-making function: see Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); and see more generally, Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [131]–[137] (Gummow J); Wei v Minister for Immigration & Border Protection [2015] HCA 51; 257 CLR 22 at [33] (Gageler and Keane JJ). The implied limitations attaching to the exercise of power under s 501BA(2) include that it is not open to the Minister to take a view of the national interest that would alter, impair, or detract from any positive provision that is made by the Act itself in pursuit of the national interest, as to which see Plaintiff S297 at [21]. Another potential limitation is temporal. In XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553, Horan J held that the power under s 501BA(2) was subject to an implied limitation that it be exercised within a reasonable time after the Tribunal’s decision. These limitations are all concerned with the legality of the Minister’s decision and are not concerned with questioning the merits of the Minister’s state of satisfaction.

35    The implication that the formation of a state of satisfaction that is required for the purposes of the exercise of a statutory power must be reasonable extends to any steps along the way, and to the process of reasoning in fact undertaken by the decision-maker: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] (Crennan and Bell JJ); Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644 at [42]–[43] (Gordon J).

36    The appellant’s challenge to the Minister’s decision to cancel his protection visa on the basis that the Minister’s reasons for so concluding were unreasonable, illogical, or irrational must engage with the “usually high” threshold that must be met in order to show that a decision of an administrative character is unreasonable: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). Where, as here, the state of satisfaction involves evaluation and the formation of an opinion by the Minister on something as broad as the national interest in relation to the cancellation of a visa on character grounds, there are inherent difficulties in showing that the state of satisfaction could not reasonably have been reached for the reasons stated by the Minister. In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; 99 ALJR 387 at [27], Steward J captured the relevant principles in the following terms –

The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

The Minister’s reasons were not unreasonable, irrational, or illogical

37    There were two principal threads to the Minister’s reasons for reaching the conclusion that it was in the national interest to exercise the power under s 501BA(2) of the Act to cancel the appellant’s temporary protection visa. Both related to the circumstances in which the appellant had failed to pass the character test.

38    The first thread was that the appellant had been convicted of an offence which involved the sexual assault of a child, which the Minister stated was viewed very seriously by the Australian community. The Minister considered that there remained a real likelihood, albeit low, that the appellant would reoffend. The nature of the offending informed the Minister’s view that repetition of the offending had the potential to cause serious harm to the Australian community and that such repetition was unacceptable, and that this carried significant weight.

39    The second thread was that cancellation of the visa was appropriate because the Australian community would expect the Government to not allow the appellant to enter or remain in Australia, and that this weighed heavily in favour of cancellation. In submissions, the appellant emphasised the Minister’s references in his reasons to the risk to the Australian community should the appellant remain in Australia, when the Minister had identified that removal of the appellant was not reasonably practicable, that he would not be taken into detention, and that he would continue to reside within the community.

40    The Minister addressed the legal consequences of the decision to cancel the appellant’s temporary protection visa, and at [69] recognised that there was presently no prospect of removal of the appellant to a third country –

69.    The protection finding made for [the appellant] means that if his removal to Sri Lanka is not required or authorised, he could only be removed to a third country. As there is presently no real prospect of this, he would not be subject to indefinite detention pending his removal.

(Emphasis added.)

41    The Minister referred to removal again at [88], stating that the appellant could not be removed to Sri Lanka at present, and stated at [90] that the circumstances in which removal was required did not presently exist –

88.    Because of the protection finding made regarding him, [the appellant] cannot be removed to Sri Lanka at present. Nevertheless, I have considered the submissions regarding impediments that [the appellant], if removed from Australia to Sri Lanka, would face in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country.

…

90.    I accept [the appellant] will experience substantial difficulties at his age and with his health in re-establishing himself in Sri Lanka. However, as noted above, the protection finding made for [the appellant] means that s198 of the Act does not require or authorise the removal of [the appellant] to Sri Lanka (s197C(3)). In this regard, I have noted that the limited circumstances in which removal is required, as set out in s197C(3)(c), do not presently exist for [the appellant]. Therefore, even if [the appellant] would face the impediments described above if removed to Sri Lanka, I find that those impediments will not eventuate as a direct result of my decision to cancel his visa.

(Emphasis added.)

42    At the hearing of the appeal the appellant was critical of the Minister’s consideration of impediments if the appellant were returned to Sri Lanka, submitting that “somewhat weirdly” there was reference in [88] to [90] of the Minister’s reasons to what might occur to the appellant if he were removed to Sri Lanka, when he was not going to be removed because he was the subject of a protection filing. I do not accept these submissions. The Minister’s reference to the topic of impediments if the appellant were returned to Sri Lanka, as well as the Minister’s statement at [69] that there was presently no prospect of removal of the appellant to a third country, show that the Minister understood that the purpose of the exercise of the power under s 501BA(2) to cancel the appellant’s protection visa was to facilitate removal of the appellant if that became practicable. The Minister’s consideration of impediments upon removal in fact undermines the appellant’s claim that the Minister’s reasons were illogical or irrational.

43    At [70] and [71] of his reasons the Minister referred again to the prospect that upon cancellation of the protection visa the appellant would not be taken into detention, and stated that he would consider the type of visa on which the appellant should reside and the conditions to be imposed. At the hearing of the appeal, it was accepted that if the appellant was not in detention, then only a BVR was available to the Minister to issue. And in the context of restrictions on the appellant’s ability to apply for another visa if the protection visa was cancelled, the Minister in his reasons identified that a BVR was the only visa for which the appellant could apply –

70.    I am aware that if a cancellation decision is made under s 501BA, [the appellant] will not be taken into detention. He will continue to reside in the community. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.

71.    I am also aware that if a cancellation decision is made under s 501BA there would be significant restrictions on [the appellant’s] ability to apply for another visa. In particular, I understand that [the appellant] would be prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s 48B, that s 48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s 501E of the Act, which would apply to [the appellant] as a result of a cancellation decision under s 501BA, with the effect that his visa would remain cancelled under s 501. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation. I have given this consideration minor weight.

44    The appellant submitted that the Minister’s reasoning was unreasonable, illogical, or irrational because the weight that he placed on community protection and community expectations was necessarily premised upon the outcome of the decision being removal from the Australian community. The appellant submitted that unless the decision resulted in removal from the Australian community, then the community would necessarily bear some risk, and that the result of the Minister’s decision was that the appellant would remain in Australia, and would continue to hold a visa, albeit a BVR rather than a protection visa. The appellant submitted that the Minister never explained how, in light of the fact that the appellant would continue to reside in Australia, cancellation would promote community protection or expectations.

45    Other submissions made by the appellant pointed to claimed inconsistencies of expression in the Minister’s reasons. For example, the Minister stated at [97] that “[t]he Australian community would not expect the appellant to continue to hold a visa”, when the consequence of the Minister’s decision was that the appellant would likely hold a visa, albeit a different class of visa. There is no substance to this submission. As with the High Court’s disposition of a similar argument in Plaintiff S22 at [27], it is plain from the context that the Minister was referring to the Australian community not expecting that the appellant continue to hold his protection visa, and not the BVR. As I have mentioned, the BVR was liable to cessation upon the Minister giving notice of his satisfaction that the appellant’s removal from Australia is reasonably practicable and which was subject to the conditions directed to protection of the community and cooperation to facilitate removal to which I have referred.

46    Another claimed inconsistency was that by [70] of the reasons the Minister stated that he would separately consider the type of visa and the conditions of the visa on which the appellant should reside following further advice from the Department, which was said to be inconsistent with the idea that the expectations of the Australian community would be met and protected by the issue of a visa with conditions. This submission quibbles with the Minister’s expression and does not rise to the level of pointing to reasoning that does not make sense, or which completely offends logical thinking.

47    The appellant cited the decision of the Full Court (Allsop CJ, Robertson and Mortimer JJ) in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] for the proposition that where an administrative decision-maker gives reasons for a decision that is challenged on the ground of legal unreasonableness which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power, the court should not go outside the reasons that were given by the decision-maker so as to fasten upon some other justification for the exercise of power, because to do so would place the court in the position of the decision-maker, and thereby to act impermissibly. Singh at [47] was not put in issue by the Minister, and has been cited and applied many times, including by Full Courts in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [61] (Griffiths J, Allsop CJ and Wigney J agreeing), and Vo v Minister for Home Affairs [2019] FCAFC 108; 269 FCR 566 at [43] (Derrington, Banks-Smith and Colvin JJ). Pausing, what was said by the Full Court in Singh at [47] must be understood as sitting with other established principles. One is the latitude that is given to reasons of an administrative decision-maker. How much latitude is given will vary according to circumstances, but it is axiomatic that reasons must be read as a whole, and not with an eye astute to discern error: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ); Plaintiff S22 at [16] (Gageler CJ, Edelman and Jagot JJ). Of course, the latitude given to administrative decision-makers when considering their reasons is not a refuge from which established error may be ignored, especially where the error is the absence of reasoning on a critical issue that is the subject of challenge: Minister for Immigration & Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at [34]–[36] (Flick, Barker and Rangiah JJ).

48    The appellant’s claim that the Minister’s reasons were unreasonable, illogical, or irrational to the high threshold that is required in order to demonstrate jurisdictional error must be rejected. When the Minister’s reasons are read fairly as a whole and against the object of the power that was being exercised it is clear that the Minister understood that, in the circumstances that then existed, removal was not practicable, that upon cancellation of the visa the appellant would not be taken into detention, and that some other visa that would be subject to conditions would be issued. The primary judge was correct to say at J [52] –

The Minister’s reasoning at SR [70]-[71] makes plain that he appreciated that the applicant would remain in the community but on a different visa and subject to the imposition of conditions following advice from the Department of Home Affairs and that the applicant’s ability to apply for alternative visas would be materially reduced. ...

49    The primary judge was also correct to conclude at J [58] –

Once the Minister’s reasons are read as a whole, including his conclusion on the national interest consideration, it is readily apparent that he was acutely aware and had regard to the fact that the applicant would remain in the Australian community for the foreseeable future but not on a Safe Haven Visa. Rather, as the Minister stated at SR [70], he would determine the type of visa to be issued to the applicant and the conditions to be imposed on that visa after further advice from the Department of Home Affairs.

50    The Minister made no error in identifying that another visa with conditions would be issued, and in stating that a BVR was the only visa for which the appellant could apply. I have identified two features of a BVR that were significant, being: (1) that a BVR is only a bridging visa and that it contemplates the possibility of the Minister being satisfied that removal would become practicable at some point in the future, at which time the visa would cease; and (2) that a BVR must be the subject of conditions calculated to protect the Australian community which in the appellant’s case would include mandatory conditions applicable to a person convicted of an offence involving a minor or other vulnerable person. Although the Minister did not specify these conditions in his reasons, he clearly had the imposition of conditions in contemplation at the time of his decision.

51    The Minister made no error in identifying considerations that favoured removal of the appellant from the Australian community, because that was the purpose of the exercise of the power. There is a significant misconception in the appellant’s case that is exposed by addressing the object of the power of cancellation, and the legal consequences of the Minister’s decision which the Minister identified. That misconception is that only detention or actual removal of the appellant was reasonably capable of being regarded by the Minister, within the terms of his reasons, as a measure of protection of the Australian community. That is not so. The Act advances its objects in different ways. As I have explained earlier, the Minister’s cancellation of the appellant’s visa in the national interest on character grounds ensured that the appellant was liable to be removed from Australia, even if removal was not reasonably practicable at the time of the decision. As I identified at [17] above, to render a person liable to removal is the purpose of the power of cancellation in the national interest on character grounds under s 501BA(2). Having regard to the purpose of s 501BA(2), it cannot be said that the Minister’s reasoning, which was directed to the circumstances and consequences of the appellant’s offending that provided the occasion for the exercise of the power, and to the protection of the Australian community and community expectations, was irrational, illogical, or unreasonable. If, as the Minister recognised, removal was not reasonably practicable at the time of the decision, then the terms of the Act directed the Minister and eligible non-citizens to other visas with different terms, and with protective conditions. The Minister’s reasons at [70] specifically contemplated that the appellant would be issued with a visa subject to conditions that would be the subject of further consideration by the Minister. It was with regard to these consequences that the Minister determined that it was in the national interest to cancel the appellant’s protection visa. In reaching these conclusions, I have not stepped outside the ambit of the reasons that the Minister gave, and therefore the considerations referred to in Singh at [47] do not arise.

52    Before I leave my consideration of the grounds of appeal that the appellant maintained, in the appellant’s supplementary submissions that were filed with leave following the High Court’s decision in Plaintiff S22, the appellant referred to two recent first instance decisions that were published following the hearing of this appeal in which on similar but not identical evidentiary foundations it was held that the Minister’s assessment of the national interest for the purposes of s 501BA(2) was tainted by jurisdictional error because the Minister did not explain in his reasons why the cancellation of the visas would protect the Australian community with the consequence that the Minister’s reasons lacked an intelligible or logical justification: KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 at [70] (Wigney J); SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954 at [20]–[21] (Perram J). It has been beneficial to examine the way in which other judges have approached similar cases. However, neither decision identifies any new principle which I should consider, and neither decision persuades me that the primary judge in this case made any error in rejecting the appellant’s claims. For the reasons I have given, there was no jurisdictional error.

Conclusion

53    Having regard to the high threshold that is required to show jurisdictional error on the ground of legal unreasonableness there was no illogicality, irrationality, or unreasonableness in the Minister’s reasons for his satisfaction that it was in the national interest to cancel the appellant’s visa in furtherance of the stated purposes of protecting, and meeting the expectations of, the Australian community. The primary judge was correct to reject the appellant’s claim to the contrary. The appeal should be dismissed with costs.

Associate:

Dated:    19 September 2025

STEWART AND NEEDHAM JJ:

Introduction

54    This appeal is against the primary judge’s dismissal of an application for constitutional writs against a decision of the Minister for Immigration, Citizenship and Multicultural Affairs: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (PJ). The Minister’s decision, made under s 501BA(2) of the Migration Act 1958 (Cth), set aside a decision of the Administrative Appeals Tribunal and cancelled the appellant’s Class XE Subclass 790 Safe Haven Enterprise visa (SHEV).

Background

55    The appellant is a citizen of Sri Lanka who arrived in Australia as a maritime arrival in April 2013.

56    In the period between July 2013 and June 2022 the appellant was granted a series of temporary visas.

57    On 30 June 2022, the appellant was granted a SHEV.

58    On 25 January 2023, the appellant was convicted of the offence of intentionally sexually touching a child aged between 10 years and 16 years. He was sentenced to imprisonment for 9 months with a non-parole period of 4 months. It is not in dispute that the appellant does not pass the character test in s 501(6)(e)(i) of the Act.

59    On 3 February 2023, the appellant’s SHEV was mandatorily cancelled under s 501(3A) of the Act.

60    On 5 July 2023, a delegate of the Minister declined to revoke the cancellation of the SHEV.

61    On 15 September 2023, the Administrative Appeals Tribunal set aside the delegate’s decision and revoked the mandatory cancellation of the SHEV.

62    On 14 June 2024, the Minister exercised his discretion under s 501BA(2) of the Act to set aside the Tribunal’s decision. The Minister signed a statement of reasons (SR) for his decision.

63    On 25 July 2024, the appellant lodged an application seeking judicial review of the Minister’s decision. That was dismissed by the primary judge on 22 January 2025.

The Minister’s decision

64    After acknowledging that the appellant fails the character test under s 501(6)(e) of the Act, the Minister identified that a decision by him to cancel the appellant’s SHEV under s 501BA(2) depended upon him being satisfied that it was in the “national interest” to do so. The Minister acknowledged that what is in the national interest is “largely a political question” (with reference to Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]).

65    The Minister identified three distinct matters as being relevant to his assessment of whether the appellant’s SHEV should be cancelled in the national interest (SR [17]), namely:

(1)    the protection of the community;

(2)    the expectations of the Australian community; and

(3)    the legal consequences of the decision.

66    The Minister then addressed each of those matters in turn, each under its own heading.

67    Regarding protection of the Australian community, the Minister concluded that the appellant’s conviction “is very serious and is relevant to consideration of the national interest” (SR [28]). After considering the nature of the harm should the appellant reoffend, the factors contributing to the appellant’s past conduct and the appellant’s remorse and rehabilitation, the Minister concluded as follows (emphasis added):

55.     I find on balance that there remains a real likelihood, albeit low, that [the appellant] will reoffend. I note that should he engage in similar conduct again; it would be likely to result in serious psychological injury to members of the community. I have given this significant weight in support of cancellation being in the national interest. Furthermore, I have also considered that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

68    The Minister then considered the expectations of the Australian community. The Minister stated that where a non-citizen has engaged in serious conduct in breach of the expectation that non-citizens obey Australian laws while in Australia, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, “expects the Government to not allow such a non-citizen to enter or remain in Australia” (SR [56]). The Minister concluded as follows (emphasis added):

58.     I have considered [the appellant’s] specific circumstances, to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons. I consider that the expectations of the Australian community, which include an expectation that non-citizens who commit serious breaches of the law should not be allowed to enter or remain in Australia, weigh heavily in favour of visa cancellation.

69    The Minister also stated that he attributed significant weight to the Government’s view about the expectations of the community towards a finding that it is in the national interest to set aside the Tribunal’s decision and cancel the appellant’s visa (SR [59]).

70    In relation to the legal consequences of a decision to cancel the appellant’s visa, the Minister decided to take into account Australia’s international non-refoulement obligations (SR [60]). The Minister accepted that the appellant is a person in respect of whom Australia has non-refoulement obligations which means that the appellant will not be removed to Sri Lanka (SR [66]). Therefore, a decision to cancel the appellant’s visa “will not result in his removal in breach of Australia’s non-refoulement obligations” (SR [67]).

71    The Minister acknowledged that in light of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137, and that “there is presently no real prospect” of the appellant being removed from Australia to a third country, the appellant “would not be subject to indefinite detention pending his removal” (SR [68]-[69]).

72    Particularly pertinent to the appeal, the Minister concluded as follows with regard to the legal consequences of a cancellation decision:

70.     I am aware that if a cancellation decision is made under s 501BA, [the appellant] will not be taken into detention. He will continue to reside in the community. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.

71.     I am also aware that if a cancellation decision is made under s501BA there would be significant restrictions on [the appellant’s] ability to apply for another visa. In particular, I understand that [the appellant] would be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to [the appellant] as a result of a cancellation decision under s501BA, with the effect that his visa would remain cancelled under s501. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation. I have given this consideration minor weight.

73    The Minister then summed up his conclusions in respect of the national interest considerations. Relevantly, the Minister stated that he was aware that if a cancellation decision was made under s 501BA, the appellant would not be taken into detention and he would continue to reside in the community (SR [75]). Having regard to “all of the above”, the Minister concluded that the use of his discretionary power to cancel the appellant’s SHEV “is in the national interest” (SR [76]).

74    The Minister considered whether there are factors bearing on the exercise of his discretion that might lead him to conclude that he should not cancel the appellant’s visa (SR [77]). The Minister concluded that having “considered the strength, nature and duration” of the appellant’s ties to Australia, “on balance, they weigh slightly against cancellation of the visa in this case” (SR [87]).

75    Finally, the Minister summed up his ultimate conclusion. The Minister stated that, amongst other things, he considered “the risk posed to the Australian community by [the appellant’s] continued presence in Australia” (SR [94]) and that “non-citizens who have engaged in criminal offending including intentionally sexually touch child >=10yrs & <16 yrs raise serious character concerns such that the Australian community would expect they should not hold a visa” (SR [95]). Ultimately, he found that “the considerations against cancellation are clearly outweighed by the national interest considerations in this case” and decided to exercise his discretion to set aside the original decision of the Tribunal (SR [98]).

The primary judge’s reasons

76    The primary judge recorded that the appellant’s submission was that there could be no rational basis for the Minister to conclude that his findings on the community protection consideration could weigh in favour of cancellation in circumstances where the Minister accepted that the appellant would remain in the community following such a cancellation (PJ [30]). Similarly, the primary judge recorded that the appellant’s submission was that it was irrational or illogical for the Minister to find that the community’s expectations weighed in favour of cancellation when the appellant would remain in the community irrespective of whether the visa was cancelled (PJ [31]).

77    The primary judge was not persuaded that the Minister’s reliance on his community protection and community expectations findings to conclude that the cancellation of the appellant’s visa was in the national interest was irrational or illogical so as to give rise to jurisdictional error (PJ [39]).

78    After recording his acceptance that the Minister’s findings about community protection considerations and community expectations were made without reference to the appellant remaining in the community (PJ [54]), the primary judge stated that he was not persuaded that that had the necessary consequence that the Minister’s satisfaction that it was in the national interest to cancel the appellant’s Safe Haven Visa was irrational, illogical or not based on findings or inferences of fact supported by logical grounds (PJ [55]). That was because it was open to the Minister to conclude that these considerations were sufficient to support such a finding.

79    The primary judge reasoned that once the Minister’s reasons are read as a whole, including his conclusion on the national interest consideration, it is readily apparent that he was acutely aware and had regard to the fact that the appellant would remain in the Australian community for the foreseeable future but not on a SHEV. Rather, as the Minister stated at SR [70], he would determine the type of visa to be issued to the appellant and the conditions to be imposed on that visa after further advice from the Department of Home Affairs (PJ [58]).

80    For those reasons, the primary judge dismissed the application and ordered the appellant to pay the Minister’s costs.

The appeal grounds

Introduction

81    The notice of appeal has five grounds, although grounds 4 and 5 were abandoned in circumstances discussed below.

82    Grounds 1 to 3 are in effect one ground of appeal, expressed in ground 1, with elaboration in grounds 2 and 3. The ground is that the primary judge erred in failing to find that the decision of the Minister to cancel the appellant’s SHEV under s 501BA was affected by jurisdictional error by reason of the Minister having reached the state of satisfaction that cancellation of the SHEV was in the national interest unreasonably, illogically or irrationally.

83    As developed in oral argument, the appeal ground has two parts to it both of which are premised on the Minister’s acceptance that cancellation of the SHEV would not remove the appellant from the community or from Australia. The first part is that nowhere in his reasons does the Minister explain or justify how cancellation of the appellant’s SHEV could serve the purpose of protecting the Australian community. The second is that nowhere in his reasons does the Minister explain or justify how cancellation of the appellant’s SHEV could serve to meet the community’s expectation that a person in the position of the appellant should not be allowed to remain in Australia.

84    The Minister’s submission in answer is that it is apparent from SR [70]-[71], read fairly, that the Minister appreciated that cancellation of the appellant’s SHEV would most likely result in the appellant living in the community under a Subclass 070 Bridging (Removal Pending) visa (BVR) subject to conditions which would offer greater protection to the Australian community and go further towards meeting the expectations of the Australian community than if the appellant remained in the community under the SHEV. The Minister submits that that is the intelligible basis to the Minister’s conclusions that the considerations of protecting the Australian community and the expectations of the Australian community support cancellation of the SHEV. For the reasons that follow, those submissions should be accepted.

85    After the hearing of the appeal and before judgment was delivered, the High Court delivered judgment in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36. The factual circumstances, including the decision-maker’s reasons, in that case are very similar to those of the present case. For that reason, the Court gave the parties the opportunity to make supplementary submissions in writing dealing with the effect that that judgment might have on the determination of the present case.

86    In his supplementary submissions, the appellant abandons grounds 4 and 5 on the basis that they cannot succeed in the light of Plaintiff S22/2025. However, he submits that Plaintiff S22/2025 can be distinguished from the present case and that it therefore does not govern grounds 1 to 3. It will be necessary to return to consider Plaintiff S22/2025 in some detail.

Applicable principles

87    It is convenient to identify some applicable principles at the outset.

88    Under s 501BA(2) of the Act, the Minister may set aside the Tribunal’s decision and cancel a visa that has been granted to a person on satisfaction of two requirements. The first, in respect of which there is no dispute, is that the person does not pass the character test. The second, which is where the contest lies, is that “the cancellation is in the national interest”. By s 501BA(3), the rules of natural justice do not apply to a decision under subsection (2). Further, by s 501BA(4), the power under subsection (2) may only be exercised by the Minister personally. By s 501G(1)(b), the Minister must give the person whose visa is cancelled a written notice that, amongst other things, sets out the decision and “sets out the reasons ... for the decision”.

89    The exercise of the discretionary power under s 501BA(2) is conditioned on it being exercised within the bounds of reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]-[24] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [90] per Gageler J; Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; 294 FCR 270 at [28] per Mortimer J and [86] per Thomas J (Bromwich J agreeing at [37]).

90    A conclusion of legal unreasonableness such as to amount to jurisdictional error can be reached either in relation to the outcome of the decision (eg if it is “so devoid of plausible justification that no reasonable person could have taken that course”: Li at [91] per Gageler J quoting from Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290 per Mason CJ and Deane J) or to the reasoning process by which the decision-maker arrived at the exercise of power. It is that latter quality of unreasonableness which the appellant relies on in relation to the Minister’s cancellation decision.

91    That quality of unreasonableness has been expressed in different ways by the High Court including:

    that the relevant decision was not “reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power” (Li at [25] per French CJ);

    that the relevant decision “lacks an evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ);

    there is an absence of “justification, transparency and intelligibility within the decision-making process” (Li at [105] per Gageler J quoting from Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47], adopted in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [20] per Kiefel CJ, Bell, Gageler and Keane JJ); and

    it is “not possible to comprehend how the [decision-maker] made its findings” (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [34]).

92    The test for unreasonableness is necessarily stringent “because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] per Kiefel CJ, and see also [52] per Gageler J and [135] per Edelman J; mere strong disagreement with the reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] per Gleeson CJ and McHugh J.

93    Where, as in the present case, the reasonableness review concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power as opposed to concentrating on the outcome of that exercise, it is the reasons given by the decision-maker to which a supervising court should look in order to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ.

94    It is immaterial if other reasons, not given by the decision-maker, might justify the decision: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [57] per Charlesworth J, Flick and Perry JJ agreeing. A court exercising judicial review jurisdiction is not entitled to replace a primary decision-maker’s reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision-maker: Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513 at [35] per Griffiths J, Gleeson J agreeing, and see [91] per Colvin J. See also FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 at [67] per Crennan and Bell JJ. The principles identified in this and the preceding paragraph are not in contest between the parties.

Analysis

95    The principal issue raised by this case is apparent from the chronology of events to which the Minister drew particular attention in argument. Notably, the Tribunal decision was made before the High Court’s decision in NZYQ whereas the Minister’s decision was after NZYQ. NZYQ brought about a sea-change in the calculus to be made in considering visa cancellations for character reasons, including with reference to the “national interest” in s 501BA. That change is that before NZYQ it was axiomatic that if a visa was cancelled the former visa holder would be removed from the community and held in immigration detention, potentially indefinitely, until they could be removed from the country. After NZYQ, in a case such as that of the appellant to whom Australia owes non-refoulement obligations and in respect of whom there is no real prospect of removal becoming practicable in the reasonably foreseeable future, cancellation of a visa would not result in removal from the community.

96    The result is that at the time that submissions were made on behalf of the appellant to the Tribunal and when it made its decision, considerations of protection of the Australian community and expectations of the Australian community inevitably weighed in favour of cancellation because cancellation necessarily resulted in the removal of the appellant from the community. However, when the Minister made his decision, that was not the case. Nevertheless, parts of the Minister’s reasons appear to have been prepared on the unspoken premise that cancellation necessarily resulted in removal from the community notwithstanding that the Minister, later in the reasons, recognised that the appellant would not be removed from the country.

97    In that regard, the Minister’s reasons assume that cancellation would reduce the risk of reoffending (SR [55]) and that cancellation would support what the Minister assessed the expectations of the Australian community to be, namely that the appellant would not be allowed to “remain in Australia” (SR [56] and [58]). Moreover, the Minister assessed the considerations of protection of the Australian community in those circumstances to have “significant weight” and the expectations of the Australian community to “weigh heavily” in favour of cancellation. Those conclusions were reached, including the weights ascribed, without exploring or explaining why or how cancellation would serve the stated purposes.

98    The appellant submits that there is no explanation in the Minister’s reasons of why a cancellation decision would reduce the risk of reoffending or support the Australian community’s expectation that someone in the appellant’s position would not be allowed to remain in Australia.

99    The Minister submits that the explanation lies in SR [70]-[71] (quoted at [19] above). He submits that, as identified by the primary judge at PJ [58] (discussed at [26] above), once the Minister’s reasons are read as a whole, it is plain that he was “acutely aware” that the appellant would remain in the community for the foreseeable future but, by cancelling the SHEV, the Minister would have the ability to determine the type of visa to be issued and the conditions to be imposed on that visa after further advice from the Department.

100    It is common ground that there were two possibilities in respect of the appellant remaining in the community following the cancellation of his SHEV. One is that he be allowed to remain in the community without any visa. The other is that he be granted a visa. We accept the Minister’s submission that the first possibility was fanciful; in considering the legal consequences of a cancellation decision, the Minister expressly contemplated that the appellant would reside in the community under a “type of visa” and subject to “conditions to be imposed” still to be decided following advice from the Department and that the appellant could apply for a BVR (SR [70]-[71]). The Minister did not contemplate that the appellant would be in the community with no visa.

101    Turning then to the second possibility, it is common ground that there is only one visa that the appellant could have qualified for while in the migration zone, namely a BVR. That is the combined effect of ss 48A and 501E(2)(b) of the Act read with regulation 2.12AA of the Migration Regulations 1994 (Cth) as they were at the time of the Minister’s decision. Moreover, although as mentioned by the Minister at SR [71], the appellant could apply for a BVR (reg 2.20A), the Minister could also grant such a visa to the appellant without him having made any application (regs 2.25AA and 2.25AB). Under item 12 in the table in reg 2.01(2), a BVR was the only subclass of the Bridging R (Class WR) visa which the Minister referred to at SR [71], ie in referring to a Bridging R (Class WR) visa the Minister was necessarily referring to a BVR.

102    It is also common ground that a BVR was subject to certain mandatory conditions as well as limited discretionary conditions. The mandatory conditions imposed by items 070.611(1)(a) and 070.612(1) of Sch 2 to the regulations with reference to the conditions set out in Sch 8 included such conditions as the visa holder: notifying Immigration of his or her residential address within 5 working days of grant (8513); notifying the Minister of any change in the holder’s employment details, not less than 2 working days before the change is to occur (8552); notifying Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel (8614); and, notifying the Minister of any change in the (a) the holder’s name, (b) an address of the holder, (c) a phone number of the holder, (d) an email address of the holder, within 2 working days after the change occurs (8625). Several other mandatory conditions were aimed at matters essentially irrelevant to the assessment of the risk posed by the appellant to the community or to his circumstances. They cover matters such as national security, terrorism and violence as well as facilitating removal from Australia (8303, 8541, 8542, 8543, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563 and 8616).

103    By item 070.612A of Sch 2 to the regulations, a number of conditions were required to be imposed by the Minister unless the Minister was satisfied that it was not reasonably necessary to impose that condition for the protection of any part of the Australian community. Those conditions included that the visa holder: wear an electronic monitoring device at all times (8621); notify Immigration of various matters with regard to receiving or transferring sums of money totalling $10,000 or more (8617) or incurring debts totalling $10,000 or more or a change in their circumstances regarding debts or bankruptcy (8618); and, observe a curfew (8620).

104    By item 070.611(b) of Sch 2 to the regulations, if the Minister did not impose the condition that required the visa holder to wear a monitoring device (ie condition 8621), then he was required to impose a condition that the visa holder report at times and places specified by the Minister orally or in writing (8401).

105    Although the conditions with respect to wearing an electronic monitoring device (8621) and observing a curfew (8620) were subsequently found to be invalid for infringing Ch III of the Constitution and thus struck down by the High Court in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 419 ALR 457, they were still in place at the time of the Minister’s decision.

106    Breach of any of the visa conditions was a criminal offence (ss 76B, 76C and 76D) with a mandatory minimum sentence of 1 year imprisonment (s 76DA) and otherwise a possible sentence of 5 years or 300 penalty units. Also, a defendant charged with a criminal offence under those provisions bore an evidential burden under s 13.3(3) of the Criminal Code contained in the schedule to the Criminal Code Act 1995 (Cth) in relation to any exception, exemption, excuse, qualification or justification provided by the law creating the offence.

107    The mandatory conditions place significant burdens on the visa holder’s freedom of movement and activity and subject the visa holder to significant monitoring. Because of that, they could serve to offer the community some protection against the risk of the appellant reoffending – that is the point of them: YBFZ at [36].

Plaintiff S22/2025

108    The plaintiff in Plaintiff S22/2025 had held a temporary protection visa (TPV) which was mandatorily cancelled on character grounds under s 501(3A) of the Act. His application for revocation of that decision under s 501CA(4) was refused by a delegate of the Minister. In exercising the statutory power in s 501CA(4) of the Act, the delegate was required by s 499(2A) of the Act to apply Direction no. 110 – Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth) (Ministerial Direction 110) which required the delegate to consider, amongst other matters, the prescribed “expectations of the Australian community”. The plaintiff was also one of the “NZYQ cohort”, ie there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future (at [7]).

109    The delegate’s reasoning recognised that under Ministerial Direction 110, the prescribed expectations of the Australian community, as a norm, were that the Government would not allow a non-citizen such as the plaintiff who had committed a serious offence to remain in Australia. The delegate accordingly attributed the consideration of the expectations of the Australian community significant weight against revocation of the cancellation of the plaintiff’s visa (at [23]). In a separate part of their reasons, the delegate stated that they were aware that if the cancellation of the plaintiff’s visa was not revoked the plaintiff would not remain indefinitely in detention, but rather would be released from immigration detention. The delegate stated that the Minister would separately consider “the type of visa” on which the plaintiff should reside and the conditions to be imposed on that visa, “following further advice from the Department” (at [9]).

110    Amongst other contentions not presently relevant, the plaintiff contended that the delegate’s reasoning with regard to community expectations was internally inconsistent with the reasoning that the plaintiff would be granted another visa permitting the plaintiff to reside in the Australian community for so long as there was no real prospect of removal of him from Australia becoming practical in the reasonably foreseeable future (at [24]).

111    From that synopsis, it is apparent that the reasoning of the delegate in Plaintiff S22/2025 is very similar to the reasoning of the Minister in the present case, and in certain respects it is identical. The key difference between the cases is in the relevant grounds of challenge. There, the irrationality challenge was on the basis of the expectations of the Australian community being that the non-citizen would not be allowed to remain in Australia whereas non-revocation of the visa would not have that result. In the present case, the challenge is on that basis as well as on the basis that the consideration of protecting the Australian community does not support non-revocation because that will not have the result of removing the non-citizen from the community.

112    The High Court rejected the irrationality challenge (at [27]). It reasoned that the “visa” referred to in the context of the expectations of the Australian community was the visa that had been subject to mandatory cancellation, ie the visa that otherwise permitted the non-citizen to remain in Australia; it is not a reference to the BVR, “which includes mandatory conditions regulating the plaintiff’s conduct and which ceases by operation of s 76AAA of the Migration Act once removal of the non-citizen from Australia is reasonably practicable because of a third country granting the non-citizen a right to enter and remain in that country.”

113    That reasoning is equally applicable in the present case to the contention based on the expectations of the Australian community and to the contention that it was internally inconsistent, or illogical, for the Minister to attribute significant weight against revocation of the cancellation of the visa to the consideration of safety of the community. This is because the critical reasoning at [27] is that there was no illogicality or “inconsistency” in cancelling a visa that granted the non-citizen the right to remain in Australia in circumstances where the non-citizen will still remain in Australia but on a visa that is designed to facilitate their removal when practicable. Also, the High Court reasoned (at [15]-[16]) that although the statement that the Minister would “separately consider the type of visa on which [the plaintiff] should reside” was incorrect in that the only “type” of visa that could be granted to the plaintiff after the delegate decided not to revoke the cancellation of the plaintiff’s TPV was the BVR, the reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” and that it was not to be assumed that the delegate misunderstood that the plaintiff could not be held in detention when the delegate elsewhere explained that they were aware that that would not occur.

114    Although the Minister’s reasons in the present case are open to the criticism that they do not explain how or why the considerations of the expectation of the Australian community and protection of the community support non-revocation in circumstances where the appellant would continue to reside in the community, it cannot be inferred that the Minister was unaware that that would be the result – that understanding was made explicit, albeit in another part of the reasons. Also, reading the reasons as a whole and not with an eye finely attuned for error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272), it cannot be inferred from the Minister’s use of the terminology of “type of visa” that he was unaware that the appellant would reside in Australia under a BVR – it was the conditions to be attached to the BVR that still had to be decided; in that sense, it was the “type” of BVR on which the Minister was to be advised by the Department. Also, as explained, a BVR is a visa for removal from the country and offers some protection to the community, matters which it cannot be inferred that the Minister was unaware of. On that basis, there was no irrationality or unreasonableness in the relevant sense in the Minister’s reasoning with reference to community expectations and protection.

115    Although Plaintiff S22/2025 does not establish any new principle that governs the present case, the Court’s reasoning to a conclusion in respect of circumstances not materially different from the circumstances of the present case demonstrate the proper path to a conclusion in the present case. None of the various grounds for distinguishing Plaintiff S22/2025 relied on by the appellant is material. Ultimately, the reasoning in Plaintiff S22/2025 governs the outcome in this case.

116    For those reasons, appeal grounds 1 to 3 fail.

Conclusion

117    The appeal should be dismissed with costs.

Associate:

Dated:    19 September 2025