Federal Court of Australia

EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128

ORDERS

THE COURT ORDERS THAT:

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

2.    Leave be granted to the appellant to file the “Amended Originating Application for Review of a Migration Decision” dated 26 November 2024.

3.    The appeal be dismissed with costs, to be agreed or taxed in default of agreement.

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

REASONS FOR JUDGMENT

CHEESEMAN AND OWENS JJ:

1    The comprehensive statement of the relevant facts and issues by Hill J permits us to express our near-complete agreement with the result at which his Honour has arrived in the briefest possible of terms.

2    The contention at the heart of Ground 1 was that two of the Minister’s findings of fact either lacked a logical foundation or were made without probative evidence.

3    The first such finding concerned the effectiveness of treatment that the appellant had received in immigration detention in reducing his risk of re-offending. For the reasons given by Hill J at [49] and [52], we agree that the challenge to that finding has not been made out.

4    The second such finding concerned the availability to the appellant, were he to be returned to Iran, of welfare services. For the reasons given by Hill J at [59]–[60], we agree that the challenge to that finding must also fail.

5    In those circumstances, it is unnecessary to express any view about whether, and if so on what basis, the asserted errors, if they had been made, would have been jurisdictional.

6    In relation to Ground 2, for the reasons his Honour gives at [75]–[87], we agree with Hill J that the Minister did not exercise his power under s 501BA on an incorrect understanding of the nature of the power, and thus that Ground 2 must fail.

7    Unlike Hill J, however, we would grant leave to the appellant to rely on Ground 2. The assessment of the merit of an argument for the purpose of determining whether leave should be granted to raise it for the first time on appeal is to be undertaken at an impressionistic level: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] (Farrell, Wigney and Perry JJ). Fundamentally, that follows from its role as one of the considerations relevant to the threshold question of whether the Court should entertain the argument at all. If more than an impressionistic assessment of merit was called for that “would make the requirement for leave meaningless”: Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 53 at [70] (Thomas, O’Bryan and McElwaine JJ). While the circumstance that the Court, as here, in fact hears full argument on the proposed ground may mean that the practical consequences of a refusal of leave are negligible, it does not alter the way in which, or the standard against which, merit is to be assessed.

8    The relevant standard has been identified as that applicable in the analogous context of the assessment of an argument’s merit for the purposes of granting an extension of time within which to bring an appeal: see, e.g., NWQR at [31]. A frequently cited statement of that standard, and the reasons for it, is to be found in the observations of Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]–[63]:

[62]     [I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact of other litigants who have abided by time limits are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. …

[63]     The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. …

9    So, as the Full Court in Okoh observed at [70]: “it is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success”.

10    In our view, although Ground 2 was ultimately unsuccessful, we consider that it possessed sufficient merit when assessed on an impressionistic basis to warrant a grant of leave to appeal. (We do not, of course, overlook the existence of other considerations relevant to the grant of leave to appeal but note, as Hill J records at [64], it was common ground that, in this particular case, the question of merit was determinative.)

11    It is for these reasons that we would dismiss the appeal with costs.

Associate:

Dated:    10 September 2025

REASONS FOR JUDGMENT

HILL J:

INTRODUCTION

12    This is an appeal from a decision by a judge of this Court: EUD24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1474 (J). The primary judge dismissed an application to review a decision of the Respondent (the Minister) made under s 501BA of the Migration Act 1958 (Cth).

13    For the following reasons, the appeal should be dismissed with costs.

BACKGROUND

14    Arrival in Australia (Nov 2012): The Appellant is a citizen of Iran. He entered Australia in November 2012, as the holder of a Class XB Subclass 200 Refugee (Permanent) visa (J [1]).

15    Criminal offending (2020-2022): The Appellant was convicted and sentenced for a number of criminal offences between 2020 and 2022, as follows:

    On 12 February 2020, the Local Court in Fairfield confirmed the conviction of the Appellant for (relevantly) common assault and contravening a prohibition/restriction in an apprehended violence order (AVO), and sentenced him to an aggregate intensive correction order of 10 months, with conditions that he attend such counselling, domestic violence and gambling-related rehabilitation as Community Corrections may reasonably direct.

    On 14 December 2020, the Local Court in Fairfield convicted the Appellant (relevantly) of common assault and two counts of contravening an AVO. He was sentenced to 12 months imprisonment.

    On 9 September 2022, the Local Court in Fairfield convicted the Appellant for three counts of common assault and for contravention of an AVO, for which he was sentenced to 9 months imprisonment. He was also convicted of stalking/intimidation and sentenced to a community correction order of 12 months.

16    The offending set out above was committed against the Appellant’s partner, who is the mother of their two children. The Appellant has well-documented mental health difficulties: the psychologist’s report considered by the sentencing Magistrate in December 2020 stated that the Appellant suffered from severe depression, anxiety, panic attacks, adjustment disorders and post-traumatic stress disorder.

17    Visa cancelled under s 501(3A) (Sep 2022): On 28 September 2022, the Appellant’s visa was cancelled under s 501(3A) of the Act (J [1]). It appears that decision relied on the Appellant’s December 2020 conviction (for which he was sentenced to 12 months imprisonment) to find that he failed the character test because of the operation of s 501(6)(a) and (7)(c), and relied on his September 2022 conviction to find that, at that time, he was serving a full-time custodial term of imprisonment for a State offence: cf s 501(3A)(a)(i) and (b).

18    On 7 October 2022, the Appellant sought revocation of the cancellation decision.

19    Delegate decides not to revoke cancellation (May 2023): On 26 May 2023, a delegate of the Minister decided under s 501CA of the Act not to revoke the cancellation of the Appellant’s visa (J [2]).

20    On 2 June 2023, the Appellant applied to the former Administrative Appeals Tribunal for merits review of the delegate’s decision.

21    AAT revokes cancellation (Aug 2023): On 21 August 2023, the Tribunal decided under s 501CA of the Act to set aside the delegate’s decision, and to revoke the cancellation of the Appellant’s visa. The effect of the Tribunal’s decision was to require that the Appellant be released from immigration detention (J [3]).

22    Minister’s s 501BA decision (Jun 2024): On 2 June 2024, the Minister acting personally decided to set aside the Tribunal’s decision and cancel the Appellant’s visa. The effect of this decision was to require the Appellant to be returned to immigration detention (J [4]). The Minister signed a Statement of Reasons on 2 June 2024.

23    Two aspects of those Reasons are especially significant to this appeal:

    First, the Minister’s findings on the risk to the community; in particular, whether the rehabilitation and treatment that the Appellant had received in immigration detention sufficiently reduced the risk of him re-offending (Reasons [74]-[77]).

    Second, the Minister’s findings on the impediments faced by the Appellant if he were removed to Iran; in particular, the finding about whether the Appellant would have access to “health and welfare services” in Iran (Reasons [125]).

24    The relevant parts of the Minister’s reasons are set out below under appeal Ground 1.

25    Application for judicial review (Jul 2024): On 10 July 2024, the Appellant applied to this Court for review of the Minister’s decision. The primary judge gave the Appellant leave to amend the originating application in terms of a draft dated 26 November 2024, with that amended application to be filed electronically “forthwith”. The amended application contained a single ground contending that the Minister’s decision was legally unreasonable, illogical or irrational, with eight sub-arguments set out in particulars (a) to (l) (see J [6]). (As it happens, the Appellant did not actually file the amended originating application until shortly before the hearing of this appeal. Nothing turns upon this matter.)

26    Primary judge dismisses application (Dec 2024): The application was heard by the primary judge on 5 December 2024. On that day, his Honour delivered ex tempore reasons for judgment, and ordered that the application be dismissed with costs.

27    Appeal to Full Court (Dec 2024): On 24 December 2024, the Appellant lodged a notice of appeal, containing two grounds of appeal.

    Ground 1 contends that the primary judge erred in rejecting Ground 1 of the amended originating application (except that no error is alleged in the primary judge’s treatment of particular (j) or the treatment of the final bullet point under particular (k)).

    Ground 2 contends that primary judge erred in failing to conclude that the Minister erred jurisdictionally in reasoning as if the power in s 501BA(2) was, and was only, a power to cancel a visa. This is a new argument.

CONSIDERATION

Act s 501BA

28    The Minister’s decision was made under s 501BA of the Act. At the time of that decision, s 501BA applied if a delegate of the Minister or the Tribunal made a decision under s 501CA (the “original decision”) to revoke a decision under s 501(3A) to cancel a visa that had been granted to a person (s 501BA(1)). (The reference to the Tribunal has since been amended to refer to the Administrative Review Tribunal.)

29    By s 501BA(2), the Minister “may set aside the original decision and cancel a visa that has been granted to the person” if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a) [substantial criminal record], on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e) [sexual offences involving a child]; and

(b)    the Minister is satisfied that the cancellation is in the national interest.

30    The rules of natural justice do not apply to a decision made under s 501BA(2) (s 501BA(3)). The power can only be exercised by the Minister personally (s 501BA(4)). The Minister’s decision is not subject to merits review under Pt 5 of the Act (s 501BA(5)).

31    It is well established that the concept of the “national interest” is broad and evaluative and, while the Minister’s decisional freedom is not unbounded, the question of what is in the national interest is largely a political one. The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest, and it is therefore largely a matter for the Minister to determine: see for example Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [43]-[44] (Derrington and Hespe JJ). At the same time, the exercise of the s 501BA power is conditioned on the requirement that it be exercised reasonably: see, for example, CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [17] (Owens J); GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [15] (Bennett J).

Ground 1:    Whether Minister’s decision was legally unreasonable, or illogical or irrational

32    Appeal Ground 1 substantially repeats the arguments put to the primary judge that the Minister’s decision is legally unreasonable, or illogical or irrational. As refined in the Appellant’s written submissions, Ground 1 can be broken down into the following arguments.

    Particulars (a)-(c) challenge the Minister’s statements that the Appellant has not demonstrated that treatment to date has reduced his risk of reoffending, particularly given his successive detention or custody, and has not shown that his rehabilitative efforts have been effective in an environment where he must deal with the everyday stressors of life (Reasons [77]). The Appellant contends that this reasoning lacks logical foundation and contradicts the established facts, because the Appellant was part of the Australian community since 21 August 2023 until the Minister’s decision in June 2024 required him to be returned to immigration detention.

    Particular (h) contends that the Minister’s finding that the Appellant will, if needed, have access to welfare services in Iran (Reasons [125]) was made without probative evidence, and that the uncontradicted evidence in the Tribunal (which was all that was before the Minister) was that the Appellant would not be eligible for unemployment benefits and financial support in Iran.

    Particulars (d)-(g) and (i) set out various “conspicuous shortcomings” in the Minister’s reasons; for example, by referring to the “notational interest” (not national interest) and to “s 501(2)” (not s 501BA(2)). The Appellant now does not contend that these errors constitute jurisdictional error in themselves, but contends that they reveal an overall lack of care such that the Court should be less ready to read the Minister’s reasons beneficially.

    The Appellant does not press particular (j) in this appeal, and accepts (correctly) that particular (k) is a recapitulation of the matters previously relied on. Particular (l) contends that the errors contended for are material.

Legal unreasonableness; illogicality or irrationality: general principles

33    Particulars (a)-(c), and particular (h), of Ground 1 contend that there is no probative basis for certain findings made by the Minister. Rather than legal unreasonableness, the more directly applicable principles would seem to be those relating to administrative decisions that are illogical or irrational. At the hearing, the Appellant indicated that there was no difficulty in the Court analysing the Ground 1 arguments through the lens of illogicality or irrationality.

34    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21, the Full Court summarised the principles relevant to illogical or irrational decision-making as follows (citations omitted):

[33]    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: … .

[34]    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: … . It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. … [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35]    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: … , such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

See also Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [51]-[52].

35    In this case, the Appellant does not contend that the ultimate outcome was unreasonable, but that certain critical findings of fact were. In Masi-Haini at [54], the Full Court queried, without deciding, whether it was consistent with Djokovic to treat illogicality in the course of making a “critical” finding of fact as a matter going to jurisdiction. In my view, it is: the arguments considered in Djokovic included arguments that there was a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction: see Djokovic at [31]. Further, the “critical fact” approach is supported by statements by Crennan and Bell JJ that jurisdictional error may be able to be established on the basis of illogical or irrational findings “on the way” to the final conclusion: see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [54] (Wigney J), citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [132]. This approach also promotes consistency with the closely related principles relating to legal unreasonableness, which applies to both the outcome of the decision and the process by which it is made (including the reasoning that led to that outcome): see Palmer at [101]; Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81] (Mortimer CJ).

36    To be clear, this does not mean that any illogical or irrational finding of fact will constitute jurisdictional error: jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: SZXUN at [55]; BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29] (the Court); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [63]-[64] (the Court). In this way, the “critical step” approach to the illogicality or irrationality ground has a built-in requirement of materiality, and can be readily accommodated with the High Court’s discussion of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [6]: see Masi-Haini at [52]; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]-[109] (Button J).

Minister’s assessment of Appellant’s rehabilitative efforts (particulars (a)-(c))

37    Appeal Ground 1 (particulars (a)-(c)) challenge the Minister’s findings about the effectiveness of treatment that the Appellant had received in immigration detention in reducing his risk of re-offending.

38    Minister’s reasons (rehabilitation): The impugned findings were made in the course of considering the protection of the community.

    The Minister first considered the seriousness of the Appellant’s criminal conduct (at Reasons [22]-[56]), and concluded that the Appellant’s offending was “very serious”, noting (among other things) the frequency of his offending and that he re-offended after serving a term of imprisonment (Reasons [56]).

    The Minister then considered the risk to the Australian community, under the headings “Factors contributing to past conduct”, “Remorse and rehabilitation” and “Recent adverse conduct” (that being the Appellant attempted to bring five vapes into immigration detention) (Reasons [59]-[68]). The Minister took into account that the Appellant sought treatment for his mental health, and attended several courses on self-control, family responsibility, family care and anger management, while in immigration detention (Reasons [63]-[64]).

39    The Minister quoted the remarks of the sentencing Magistrate in September 2022 that the Appellant was an unacceptable risk of further serious offending or endangering the safety of the victim or the broader community (Reasons [71]). The Minister then reasoned as follows on the effectiveness of the Appellant’s rehabilitative efforts (emphasis added):

74.    I am of the view that the [Appellant]'s prospects of avoiding future such offending depend heavily on whether he can effectively address his rehabilitation needs.

75.     While [the Appellant] has undergone treatment while in immigration detention that appears to have had a positive impact on him, [he] has not sufficiently demonstrated his ability to manage his mental health while in the community due to successive periods of custody and detention. Accordingly, I have serious concerns as to whether [the Appellant]'s rehabilitative efforts, while admirable, have addressed his offending.

76.     I accept that detention and incarceration may have had a deterrent effect on [the Appellant], but on balance, I have found that [the Appellant]'s conduct is very serious and that such conduct has the potential to cause physical, psychological injury and financial harm to members of the Australian community.

77.    A number of factors, as outlined above, may have contributed to [the Appellant]'s offending behaviour. I note in particular [the Appellant]'s mental health [is] a contributing factor. However, I remain concerned that [the Appellant]'s mental health concerns are ongoing (noting diagnosis of complex PTSD), and that [the Appellant] has not demonstrated that treatment to date has reduced his risk of reoffending, particularly where he has been in successive detention or custody and has not demonstrated that his rehabilitative efforts have assisted him in an environment where he is required to deal with the everyday stressors of life. I have found that on balance that there remains a real risk that [the Appellant] will reoffend.

40    Appellant’s arguments (rehabilitation): The Appellant contends that the emphasised statement in Reasons [77] above is illogical and irrational, because the Minister did not take into account the fact that the Appellant had been in the community for over 9 months by the time of the s 501BA decision. The Appellant submits that the Minister’s own reasoning made the issue of rehabilitation important (as indicated by Reasons [74]), such that (as I understand the argument) any error of substance in the Minister’s reasoning on this point would be a “critical step” in the Reasons.

41    The Appellant contends alternatively in writing that the Minister’s assessment of risk purported to be, but was not, based on “current circumstances” (citing CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [74] (the Court)). The Appellant contends that, in the absence of any information that the Appellant had re-offended since his release from immigration detention, the only reasonable inference that the Minister could have drawn is that the Appellant had not re-offended in that time. At the hearing, the Appellant pointed out that the National Criminal History Check before the Minister was current until 29 May 2024, and did not have any record of the Appellant being charged with any offences (let alone convicted) in the period between the Tribunal’s decision and the Minister’s decision on 2 June 2024.

42    The Appellant contends that the better reading of the Reasons is that the Minister failed to account for the period of time that the Appellant had spent in the community by the time of the s 501BA decision, relying on GRCF at [37]-[61]. In oral submissions, the Appellant referred particularly to the following: (i) the impugned finding in Reasons [77] is not qualified (whereas Reasons [75] states that a similar matter is not “sufficiently” demonstrated); (ii) a period of 9 months in the community without re-offending is (it is said) objectively salient; and (iii) Reasons [77] states that the Appellant “has been in successive detention or custody”, whereas the correct position at the time of the Minister’s decision was that the Appellant “had been” in successive detention or custody.

43    The Appellant submitted further that the Minister’s findings on rehabilitation took on significance, when the Tribunal had considered the same material relating to rehabilitation and concluded that the Appellant presented a moderate or medium risk of re-offending (Tribunal reasons for decision (AAT) [134], [136]). The Appellant submitted that the Minister found a higher level of risk than the Tribunal, albeit the Minister’s reasons contain somewhat contradictory statements on this topic: Reasons [77] finds there is a “real” risk; Reasons [85] states that the Minister “ha[d] found that there is a high ongoing risk” of the Appellant reoffending; and Reasons [142] states that the Minister “could not rule out the possibility of further criminal conduct” by the Appellant, and that the Australian community “should not tolerate any risk of further harm” (while Reasons [143] states that the Appellant poses a “significant risk” to the Australian community).

44    The primary judge rejected the argument that the Minister had overlooked the nine month period in the community, on the basis that the Minister states in Reasons [75] that the Appellant had not “sufficiently” demonstrated his ability to manage his mental health while in the community, and explicitly recognises in Reasons [6] that the Appellant’s visa was “reinstated” by the Tribunal’s decision: J [28]. The Appellant contends that this is an overly beneficial reading of the Minister’s Reasons, and that the various errors collected in particulars (d)-(g) and (i) demonstrate such an overall lack of care that the Court should be less ready to read the Reasons beneficially.

45    Proper approach to interpreting the Minister’s reasons: The Appellant’s argument turns on the proper interpretation of the Minister’s reasons, and whether the Minister can be taken to have understood that (at the time of his decision) the Appellant had been in the community for some nine months without further offending. As noted, the Appellant contends that the Minister made his decision on an incorrect factual basis, because he overlooked this nine month period.

    The Appellant rightly does not contend that the lack of re-offending in the nine months since the Appellant’s release from immigration detention, by itself, meant that the Minister was compelled to find that the Appellant was rehabilitated. Any such argument would be impossible to maintain: apart from anything else, it appears that the Appellant was released from prison on parole on 14 December 2020, and committed further offences against his partner from April 2022 onwards (a period of around 16 months).

    Nor is there any general requirement that the Minister may only rely on information that is current to the date of the Minister’s decision. In EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492 at [64], the Full Court held that it was not unreasonable for the Minister to rely on 10 month old material when making a decision under s 501(3) of the Act (which like s 501BA is made by reference to the national interest, and excludes procedural fairness). This reasoning in EUF20 has been applied to decisions made under s 501BA of the Act: see CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480 at [69], [80] (Raper J) (considering rehabilitation); see also BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600 at [47] (Burley J). It is true that, in GRCF, Bennett J held that the Minister’s finding about the applicant’s attitude to rehabilitation was illogical or irrational, in circumstances where the only information on that topic was that filed in the Tribunal some 10 months prior to the Minister’s decision. Significantly, however, her Honour held that the Minister could lawfully have made a decision based on the applicant’s attitude to rehabilitation at the time of the Tribunal proceedings: the problem in that case was that the Minister was purporting to make a decision based on the applicant’s attitude at the time of the s 501BA decision: GRCF at [51].

46    At the level of principle, it is not in dispute that the Minister’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 [60] (French CJ, Bell, Keane and Gordon JJ); CPQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 191 at [21] (the Court). At the same time, the reasons for a decision that cancels a person’s visa should contain reasoning that is logical and easy to understand, all the more so when the visa is cancelled without prior notice to the person: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133; (2021) 285 FCR 540 at [123] (Lee and Wheelahan JJ).

47    In writing, the Appellant points to the unique nature of the s 501BA power, in that the decision is made without notice, there is no opportunity to seek revocation of that decision, and there is no requirement to table the reasons for decision in Parliament (cf ss 501(4A), 501C(8), 501C(9) of the Act), citing XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553 at [58]-[59] (Horan J). The unique features of s 501BA identified by Horan J may be accepted (although his Honour was not considering the requirements of a statement of reasons for a decision made under that provision). However, the principle that statements of reasons for administrative decisions are read fairly and as a whole follows from the separation of executive and judicial power: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); AAL19 v Minister for Home Affairs [2020] FCAFC 114; (2020) 277 FCR 393 at [48]-[49] (the Court). That rationale applies equally to an exceptional power such as s 501BA. And the statutory requirement in s 501G(1)(e) of the Act to “set out the reasons … for the decision” is the same for decisions made under ss 501(1) or (2), 501A(2), 501B and 501CA (which are made on notice to the person) and decisions made under ss 501BA and 501F (which are made without notice).

48    Can it be inferred that the 9-month period was overlooked? Here, the Minister did not expressly refer to the fact that the Appellant was in the community for 9 months before the Minister’s decision. The issue is whether the Court should infer that the Minister overlooked that fact: see [45] above. Although the Appellant’s argument is framed in terms of unreasonableness, some guidance can be obtained from cases considering the proper interpretation of reasons when it is said that a representation or evidence has been overlooked: see for example Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (the Court); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [48]-[50], [52]-[54] (the Court). It is necessary to consider the facts of each particular case and the Minister’s reasons as a whole: Minister for Home Affairs v Ogawa [2019] FCAFC 98; (2019) 269 FCR 536 at [103] (Davies, Rangiah and Steward JJ), citing Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76] (the Court).

49    In this case, it is significant that the Reasons state that the effect of the Tribunal’s decision was to “reinstate” the Appellant’s visa (J [28]); that is, the issue of the Appellant being released into the community was identified at some point: cf WAEE at [47]. Further, the period for which the Appellant was in the community (even if salient) was not so long that it could be expected that the Minister would refer to this period expressly if he was going to make a finding about rehabilitation: cf MZYTS at [52]. That is, there is not such an immediate tension between the Appellant being in the community for 9 months without re-offending, and the Minister not being persuaded that the Appellant is rehabilitated, that the two cannot stand together without some express explanation from the Minister. Finally, the statement in Reasons [77] should be read together with Reasons [75], such that the Minister’s reasoning can be understood as meaning that the Appellant’s efforts towards rehabilitation to date had not sufficiently demonstrated his ability to manage his mental health in the community (as held by the primary judge: J [28]). Finally, the statement that the Appellant “has been” in successive detention or custody is capable of being understood as referring to periods in the recent past, and does not compel the conclusion that the Minister failed to appreciate that the Appellant was in the community at the time of the Minister’s decision.

50    GRCF is distinguishable: The Minister’s reasons in this case can be distinguished from those considered in GRCF, which is relied on by the Appellant. In GRCF, the Minister’s reasons stated that the applicant in that case “has not continued seeking psychological treatment or counselling to address his mental health and psychological function”: GRCF at [47] (emphasis added). Bennett J held that this statement contained a material error: GRCF at [52].

    The only evidence on that topic before the Minister was evidence provided to the Tribunal some 10 months earlier: GRCF at [40]. Bennett J held that the Minister’s statement purported to assess the applicant’s steps towards rehabilitation at the time of the Minister’s decision, but there was no evidence as to what had happened in the preceding 10 months, nor was there any material on which a logical inference could be drawn: GRCF at [52].

    The crucial difference between GRCF and this case is the proper interpretation of the Minister’s reasons. Bennett J held that the Minister’s reasons in GRCF could only be interpreted as a purported assessment of the applicant’s willingness to engage with rehabilitation at the time of the Minister’s decision, in circumstances where the latest evidence on that matter was 10 months old. In this case, by contrast, the impugned statement in Reasons [77] (particularly when read together with Reasons [75]) can readily be understood as accommodating the period of non-offending after the Appellant’s release from immigration detention.

51    For completeness, this case is also distinguishable from CKL21, which the Appellant referred to in writing. In that case, the Full Court found that there was no probative basis for a finding that the appellant in that case (who had committed murder as a teenager) posed a risk of re-offending in a similar manner: CKL21 at [86]. In CKL21, the Minister’s caution about rehabilitation could not be justified, because the significant period of many years between the appellant’s previous substance abuse (which had contributed to the past offending) and the time of the Minister’s decision made it necessary to ask whether circumstances had changed: CKL21 at [85]. In this case, by contrast, the Appellant had been in the community for 9 months at the time of the Minister’s decision, which is not so long a period as to require consideration of whether there had been a change in circumstances.

52    Particulars (d)-(g), (i) do not alter position: In considering the Minister’s reasons, I would not attach any additional significance to the errors in the Reasons identified in particulars (d)-(g) and (i). As the primary judge stated, these lapses in the quality of work are unfortunate to say the least (J [18]). However, these lapses do not prevent the Court from understanding the Minister’s chain of reasoning on the place of rehabilitation in assessing risk to the community, unlike the position in ERY19 at [124].

53    Conclusion on rehabilitation (particulars (a)-(c)): For these reasons, the Appellant’s argument raised by particulars (a)-(c) (challenging the Minister’s statement about rehabilitation in Reasons [77]) should be rejected.

54    These conclusions mean it is not necessary to determine other matters raised in oral argument. In particular, it is not necessary to reconcile the Minister’s different statements on the level of the risk of the Appellant re-offending in Reasons [77] and [86]: see [43] above. The Appellant does not argue that these statements evidence jurisdictional error in themselves, but rather that the Minister’s findings of an increased level of risk (as compared to the Tribunal) mean that any error in the Minister’s reasoning on this point is material. However, as set out above, it should not be inferred that the Minister overlooked that the Appellant spent 9 months in the community without re-offending, which means it is not necessary to address the issue of materiality on this aspect of the argument.

Appellant’s access to welfare services (particular (h))

55    Appeal Ground 1 (particular (h)) challenges the Minister’s finding about whether the Appellant would have access to welfare services on his return to Iran.

56    Minister’s reasons (health and welfare services): This finding was made in the context of considering the impediments that the Appellant would face if he were returned to Iran. The Minister considered the Appellant’s age and health (Reasons [120]) and language and/or cultural barriers (Reasons [121]).

57    The Minister then reasoned as follows, under the heading “Social, medical and/or economic support available in Iran” (emphasis added, references to attachments omitted):

122.     I have considered that [the Appellant] in the AAT hearing indicates that he will not be eligible for unemployment benefits and financial support in Iran … .

123.     I note that [the Appellant] may be able to obtain some economic support from his family in Iran. I also note that [the Appellant] would have social support from his mother and sister in Iran … .

124.     I note that if removed, [the Appellant] will likely face emotional hardship as a result of being separated from his children … .

125.     I find that [the Appellant] will, if needed, have access to health and welfare services in Iran on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia. I also acknowledge that [the Appellant] would need to establish a new network of contacts for medical support, if needed.

58    Appellant’s arguments (welfare services): The Appellant repeats the argument that there was no probative basis for the Minister to conclude that the Appellant would have access to “welfare” services, because the only evidence before the Minister was the Appellant’s evidence in the Tribunal that he was not eligible for unemployment benefits. The primary judge rejected this argument and held that, read in context, this statement is a reference to medical support (J [25]-[26]). The Appellant contends that this is an overly beneficial interpretation of the Minister’s reasons. Initially it appeared that the Appellant was making a further argument that, even if “health and welfare services” were construed as referring to medical services, the Minister did not have a probative basis for that finding. However, the Appellant clarified at the hearing that he was not making any such argument.

59    Consideration (welfare services): Again, the Minister’s reasons need to be read fairly and as a whole. On the Appellant’s interpretation of the Reasons, the Minister sets out the Appellant’s position that he is ineligible for unemployment benefits and financial support in Reasons [122], but then makes a finding, without any foundation, that contradicts the Appellant’s position in Reasons [125]. That would be a surprising chain of reasoning. A more likely interpretation is that the Minister is referring to different matters in Reasons [122] and [125]. And it should be noted that the impugned statement in Reasons [125] refers to the compound concept of “health and welfare services”, not just “welfare services” (as noted by the primary judge: J [25]).

60    That interpretation is supported by reading this part of the Reasons in sequence, having regard to the topics identified in the heading (social, medical, and economic support). As the primary judge observed, the Minister deals with economic support in Reasons [122]-[123], social support in Reasons [124] (and the last sentence of [123]), and deals with medical support in Reasons [125] (J [25]). It does not do violence to the ordinary meaning of “welfare” to interpret “health and welfare services” as referring to medical support (J [26]): see also Oke v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1567 at [45] (Markovic J). Contrary to the Appellant’s oral submission, Reasons [125] cannot be read as a paragraph making conclusions about the matters raised in the previous paragraphs: for example, Reasons [125] does not refer to social supports.

61    For these reasons, the argument raised by particular (h) (challenging the Minister’s finding about health and welfare services in Iran in Reasons [125]) should be rejected. Again, it is not necessary to determine other issues raised in oral argument, such as whether regard can be had to other information supporting the Minister’s conclusions contained in the briefing material that is not referred to in the Reasons or in the Ministerial briefing.

Ground 2: Whether Minister misunderstood nature of s 501BA power

62    Appeal Ground 2 contends that the Minister committed jurisdictional error in reasoning as if the power in s 501BA(2) was, and was only, a power to cancel a visa. The Appellant contends that s 501BA(2) conferred a power on the Minister to do two things at once: (1) set aside a decision to revoke the cancellation of the Appellant’s visa; and (2) cancel the visa; but that the Minister reasoned as if the power was only a power to cancel the visa.

Leave is required to raise this argument on appeal

63    This argument was not raised before the primary judge, and the Appellant correctly acknowledges that he requires leave to raise it on appeal. The issue is whether granting leave to raise the new argument is in the interests of justice, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [23]-[24] (the Court); see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]‑[48] (the Court).

64    The Appellant accepts that there is no good explanation for not raising it before the primary judge (other than the legal team did not think of it then). However, the Minister accepted in oral argument that the main issue is whether the argument has merit: the Court has held that it is likely to be in the interests of justice to ensure that an administrative decision arguably affected by jurisdictional error and capable of depriving a person of liberty (and potential liability to removal from Australia) is not carried into effect: Fualau v Minister for Home Affairs [2020] FCAFC 11 at [16] (the Court); see also CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [36] (the Court). This assessment of merits may be undertaken at an impressionistic level: see NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] (the Court); AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [58] (the Court).

Appellant’s arguments on Ground 2

65    As developed in oral argument, the Appellant’s argument on Ground 2 had four steps: (1) the s 501BA power has two aspects – the power to “set aside” the Tribunal’s decision, and to cancel a person’s visa; (2) the Minister is required to exercise the power and discretion in s 501BA on a correct understanding as to the nature of this power; (3) the Minister wrongly did not exercise the power by reference to both aspects (by overlooking the “set aside” aspect); and (4) this error was material.

66    The Minister did not take issue with step (1) in the argument, and I am prepared to accept step (2) for present purposes. As to step (3), the Appellant contends that the error manifests in that part of the decision where the Minister, having satisfied himself that the preconditions in s 501BA(2)(a) and (b) were met, considered whether to exercise the discretion in s 501BA(2) (see Reasons [87]ff). The Appellant contends that the Minister wrongly proceeded on the basis that s 501BA(2) was, and was only, a power to cancel a visa. That is said to be apparent from multiple references the Minister made to the discretion being whether to “cancel” the Appellant’s visa, not “set aside and cancel” the visa.

67    Another way the Appellant puts the argument is that the Minister failed to consider that the effect of his decision under s 501BA(2) was to deprive the Appellant of the “fruits” of his internal and merits review proceedings.

68    In writing, the Appellant also contended that the error was revealed by the Minister adopting (in the part of the Reasons dealing with discretion) the Minister’s earlier reasoning on “national interest”, which (it is said) went only to cancellation, and not to setting aside the Tribunal’s decision. However, in oral argument, the Appellant accepted that matters of national interest remain relevant at the discretionary stage, and the argument became that setting aside is the very purpose of the power to cancel.

Argument was rejected in XMBQ and RCWV

69    The Appellant acknowledges that this argument was rejected by Horan J in XMBQ. His Honour’s reasons are as follows (omitting references to paragraph numbers in the Minister’s reasons in that case):

[63]    As discussed further below, s 501BA(2) confers a single power of a composite nature, by which the Minister may both set aside a decision to revoke the mandatory cancellation of a person’s visa, and cancel that visa: see CRRN … at [33] (Owens J). I accept that this cannot be treated as simply a power to cancel the visa of a person in circumstances where there happens to have been a previous decision made by a delegate or the Tribunal under s 501CA to revoke a cancellation decision under s 501(3A). The cancellation of a person’s visa under s 501BA(2) is consequent upon and connected with setting aside the original decision that was made under s 501CA(4).

[64]     However, I do not accept that the Minister was acting under any misapprehension that the power he was exercising did not involve setting aside the original decision of the Tribunal to revoke the cancellation of the applicant’s visa. The Minister’s statement of reasons is replete with references to the Tribunal’s decision. First, the decision itself is expressed in terms that refer to the exercise of discretion to set aside the Tribunal’s decision and cancel the applicant’s visa: … . Second, the fact of the Tribunal’s decision is expressly recorded in the Minister’s reasons: … . Third, the Minister’s reasons directly engage with the findings made by the Tribunal, as well as the evidence that was before the Tribunal: … .

[65]     The applicant pointed to various paragraphs in the Minister’s statement of reasons which refer to the discretion whether or not to cancel the applicant’s visa, and the consequences of the cancellation of the applicant’s visa, without directly referring to setting aside the Tribunal’s decision: … . However, on a fair reading of the Minister’s reasons as a whole, there is nothing in those paragraphs to suggest that the Minister was treating the power as involving cancellation divorced from setting aside the Tribunal’s decision. It was both permissible and appropriate for the Minister to address whether the discretion under s 501BA(2) should be exercised by reference to the consequences of cancelling the visa that had been granted to the applicant. The Minister was clearly cognisant of the fact that the discretion arose in the context of the original decision by the Tribunal to revoke the cancellation of the applicant’s visa, and that he was deciding whether to set aside that decision and cancel that visa.

70    Since the Appellant’s written submissions were filed, the argument has also been rejected by McEvoy J in RCWV v Minister for Immigration and Multicultural Affairs [2025] FCA 907, which was argued shortly before XMBQ was handed down. Justice McEvoy does not refer to XMBQ, although the Appellant informed the Court that the parties referred his Honour to that decision once it was handed down. The Appellant accepted in oral argument that the decision of McEvoy J constitutes an independent rejection of the arguments raised by Ground 2. His Honour’s reasons were as follows.

    The Minister’s decision in RCWV also made express references at points to his decision being to set aside the Tribunal’s decision, as well as to cancel the applicant’s visa: RCWV at [64]-[66].

    There was no error in the paragraphs of the Minister’s reasons referring only to whether to cancel the applicant’s visa. One precondition for exercising the Minister’s power under s 501BA is that the Minister is satisfied that “the cancellation is in the national interest” (s 501BA(2)(b)): RCWV at [68] (emphasis added).

    The fact that the effect of the Minister’s decision was to deprive the applicant of the “fruits” of the merits review proceedings was not a mandatory relevant consideration. In any event, the Minister’s reasons demonstrated an acute awareness of the history of the proceedings: RCWV at [70].

71    The Appellant submits that a distinguishing feature in this case is the errant reference by the Minister to s 501(2) in Reasons [128], which (it is said) makes it easier to infer that the Minister wrongly considered that the s 501BA(2) power was simply a power to cancel a visa.

72    The Appellant submits further that the above reasoning in XMBQ should not be accepted. These arguments (set out below) are similar to those set out by McEvoy J in RCWV at [60]-[62].

(a)    First, the Appellant contends that it is no answer that the Minister correctly referred to the nature of the power at the beginning and end of the Reasons: cf XMBQ at [64]. That is because (it is said) the complaint is as to the Minister’s reasoning process.

(b)    Second, the Appellant contends that it is no answer that the Minister referred throughout to the Tribunal’s reasons: cf XMBQ at [64]. The Appellant contends that the Minister merely treated the Tribunal’s decision as another source of information relevant to the decision, whereas (it is said) the Tribunal’s decision goes to the heart of the power.

(c)    Third, the Appellant contends that this misunderstanding of the s 501BA power is material. It is said, for example, that recognising that a s 501BA decision sets aside a successful Tribunal decision for a person could direct attention to the “cruel” impact of cancelling a person’s visa after he or she has spent significant time in the community, referring to Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266 at [92] (McDonald J).

73    In oral argument, the Appellant submitted there is a difference between a decision that “overrides” the Tribunal’s decision (as in s 501BA) and a decision that “overtakes” the Tribunal’s decision (as would occur if, say, the Minister cancelled a person’s visa under s 501(3) of the Act after a Tribunal decision). The Appellant refers here to Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270 at [14] (Mortimer J, as her Honour then was), and Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350, particularly at [110] (Colvin J). The Appellant also submitted that the Minister’s failure to consider the separate “set aside” aspect of s 501BA is revealed by the fact that the discussion of discretionary matters at Reasons [87]-[144] would be the same, if the Minister had instead exercised the power in s 501(3) (which in terms is simply a power to cancel a visa). The Appellant pointed particularly to the conclusions on community expectations in Reasons [143], and submitted that this analysis would have been different if the Minister had appreciated that s 501BA was a power to both set aside the Tribunal’s decision and cancel a person’s visa.

Consideration of Ground 2

74    It can be seen that Horan J in XMBQ accepted that s 501BA is a power to set aside and cancel, not just a power to cancel (step (1) in [65] above), but rejected the argument that the Minister in that case had wrongly treated s 501BA as if it were simply a power to cancel a visa (step (3) above). McEvoy J in RCWV also rejected step (3) in the argument, without making any comment on the other steps: see RCWV at [63]. Their Honours’ analysis of the Minister’s reasons for decision are, with respect, compelling, and (as explained below) the Minister’s reasons in this case cannot be properly distinguished from the reasons for decision considered in XMBQ and RCWV. That is sufficient to reject proposed Ground 2.

75    References to setting aside the Tribunal decision: The first reason to reject the Appellant’s argument is that the Minister’s decision in this case makes express reference to setting aside the Tribunal’s decision, as well as cancelling the Appellant’s visa. The Minister’s decision record states that he decides to “set aside the decision of the [Tribunal] and cancel the [Appellant’s] visa”: see RCWV at [64]. The cover page to the Ministerial submission, where the Minister circled the options that he would take, also refers to exercising the personal power “to set aside the AAT’s decision and cancel the visa of the [Appellant]”. In addition, as in XMBQ and RCWV, the Reasons state (at [1] and [145]) that they relate to a decision to “set aside a decision of the [Tribunal] and to cancel the [Appellant’s] visa”, and state (at [7]) that s 501BA enables the Minister, acting personally, “to set aside a decision of the [Tribunal] that, in effect, reinstated a person’s visa, and to cancel that visa”, if certain pre-conditions are met (emphasis added). Further, the Reasons (at [6]) set out the fact that the Tribunal decided under s 501CA(4) of the Act to revoke the mandatory cancellation of the Appellant’s visa, and note that as a consequence of that decision, the Appellant’s visa was “reinstated”.

76    These statements negate any suggestion that the Minister misapprehended that the power he was exercising did not involve setting aside the decision of the Tribunal (see XMBQ at [64]).

    Although the Appellant argues that his concern is with the Minister’s reasoning (and not the statements of conclusion at the beginning and end of the Minister’s reasons), this approach is simply to read the Minister’s reasons as a whole: cf [72](a) above. As the Minister points out, the Appellant’s complaint is not so much about the reasoning process, but whether the Minister’s reasons (which must be taken as a whole) reveal a misunderstanding of the nature of the s 501BA power.

    It might be noted that, in Wu Shan Liang, the delegate’s reasons started and finished with the correct test, and it was only some phraseology in between which provided the basis for arguing that the delegate had slipped from an assessment of real chance to an assessment of balance of probabilities: Wu Shan Liang at 271. The plurality held that, when read in context, the impugned statements by the delegates did not indicate that they were in fact applying the wrong test: Wu Shan Liang at 280-282. The same is true here.

77    For the same reason, it is not significant that many paragraphs in the Reasons considering the exercise of discretion refer only to a decision whether to “cancel” the Appellant’s visa (or to “cancellation”), rather than a decision whether to “set aside the Tribunal’s decision and cancel” his visa: see Reasons [87] (discretion), [89] and [98] (best interests of minor children), [106] (ties to Australia), [118] (treatment of non-refoulement claims), [127] (impediments if removed to Iran), [132] (impact on victims), [135] (impact on Australian business interests), [138], [139], [144] (conclusions). When the Reasons are read fairly and as a whole, these paragraphs do not suggest that the Minister was treating the power as involving cancellation, divorced from setting aside the Tribunal’s decision: see XMBQ at [65]; cf [66] above. And there is no error in those parts of the Reasons which consider the national interest referring only to whether to cancel the Appellant’s visa (for example, Reasons [86] (conclusion on national interest)): that reflects the wording of the precondition in s 501BA(2)(b): RCWV at [68].

78    To the extent necessary, the recognition in the Reasons that the Tribunal’s decision had “reinstated” the Appellant’s visa (when that visa was now being cancelled) make clear that the Minister appreciated that the effect of his decision was to deprive the Appellant of the “fruits” of the merits review proceeding: cf [67] above. That said, there is much force in the Minister’s submission that the Minister is not bound to consider that the effect of the decision was to deprive the Appellant of the benefit of the favourable Tribunal decision, given that s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in the exercising the discretion in s 501BA(2): RCWV at [70]; Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61] (the Court).

79    The errant reference to s 501(2) (in Reasons [128]) does not provide a basis for distinguishing this case from XMBQ or RCWV: cf [70] above. As discussed above, although this typographical error is unfortunate and should be avoided, there is no real ambiguity in what is meant by the Minister’s reasons when they are read as a whole.

80    Reference to Tribunal evidence and materials: The second reason to reject the Appellant’s argument is that the Minister’s reasons in this case refer at points to the evidence and materials before the Tribunal (see XMBQ at [64]). The Minister refers to the evidence filed in the Tribunal about the courses that the Appellant had attended (Reasons [64]); to more detailed material filed in the Tribunal proceedings relevant to the Appellant’s criminal offending (Reasons [55], [71]-[72], [95] (AVO)); to oral evidence given in the Tribunal about the Appellant’s relationship with his children (Reasons [91]-[93], [102]); to claims by the Appellant in the Tribunal that he was owed protection obligations (Reasons [111]); and to oral evidence about his position in Iran, including that he will not be eligible for unemployment benefits (Reasons [122]-[124]).

81    The Appellant’s written submissions contend, however, that the Minister merely treated the Tribunal’s decision and its materials as a source of information, whereas (it is said) the Tribunal’s decision goes to the heart of the power. This argument reads too much into the description of s 501BA as an “override” power: as to which, see Tereva at [28] (Mortimer J, as her Honour then was).

82    In CRRN, Owens J reached the following conclusions about s 501BA that run counter to the Appellant’s arguments in this case.

    The applicant in that case argued that it was necessary for the Minister to read the Tribunal’s reasons, given that the s 501BA power involved setting aside the Tribunal’s decision: CRRN at [29]. Owens J rejected that argument, holding that the Tribunal’s reasons are not a mandatory consideration that must be taken into account in every case (although there may be circumstances where a failure to have regard to the Tribunal’s reasons may reveal error): CRRN at [32].

    Owens J held that the description of the power as being to “set aside the [Tribunal’s] decision and cancel a visa” should be read as identifying two aspects of the one power. The Minister’s power under s 501BA is conditioned on an assessment of the national interest, which is no part of the Tribunal’s decision. It follows that, when the Minister was considering whether to “set aside” the Tribunal’s decision, it was the result, not the reasoning, that was in issue: CRRN at [33]. In other words, the Minister’s power is not conditioned on the Minister finding error in the reasoning of the Tribunal, or even disagreeing with it: CRRN at [34]. To similar effect, Mortimer J stated in Tereva at [28]:

The Minister is empowered, subject to remaining within the boundaries of the concept of the “national interest”, and the boundaries of legal reasonableness and rationality, to simply take an entirely different view of the facts and circumstances to that taken by the Tribunal.

83    If there is no need for the Minister to “rebut” the Tribunal’s reasons (Tereva at [28]), or even to disagree with the Tribunal’s reasons (CRRN at [34]), then it is difficult to see how the Tribunal’s reasons (as opposed to the result) go to the heart of the power: cf [72](b) above. To the contrary, the setting aside of the result of the Tribunal’s decision and the cancellation of a person’s visa go hand in hand. As discussed above, the Minister’s reasons in this case sufficiently disclose an awareness that the effect of the decision was to cancel a visa that had been “reinstated” by the Tribunal’s decision.

84    No difference between “overriding” and “overtaking” the Tribunal’s decision: For these reasons, I do not accept the Appellant’s proposed distinction between a decision that “overrides” the Tribunal’s decision, and a decision that “overtakes” the Tribunal’s decision: cf [73] above. As the Minister submits, the effect on the non-citizen’s legal rights is the same in each case: the person becomes an unlawful non-citizen and liable to detention under the Act. It follows that a number of the Appellant’s specific arguments must also be rejected.

85    First, it is true that the statutory premise of s 501BA is that the Minister decides that the national interest requires making a decision that reverses the usual system of merits review: see Moli at [110]; Tereva at [14]. However, these statements do not suggest any error in the decision of the Minister here. In Moli, Colvin J held that the Minister’s decision in that case was made by reference to an identified matter of national interest and did not take effect, in substance, as a mere reversal on the merits of the Tribunal’s decision: Moli at [122]. The same is true here.

86    Second, the Appellant’s argument does not receive any support from Morgan at [92]: cf [72](c) above. That remark of McDonald J was made in the context of discussing (without deciding) whether the power in s 501BA is subject to an implied requirement that it be exercised within a reasonable time after the Tribunal’s decision that is being set aside.

87    Third, I accept the Minister’s submission that it is not helpful to postulate a hypothetical s 501(3) decision cancelling the Appellant’s visa, and to compare the reasons that might be given for that hypothetical decision with the reasons given here: cf [73] above. In particular, the Minister’s discussion of community expectations in Reasons [143] does not suggest any error.

    The Minister states that the Australian community generally would expect that a non-citizen who has very serious criminal history involving domestic violence should not continue to hold a visa. That reasoning simply reflects the statement of community expectations in Reasons [79] and [81] (that, where there is an unacceptable risk that a non-citizen may engage in a serious breach of the law, the Australian community, as a norm, expects that the Government would not allow such a non-citizen to remain in Australia, regardless of the specific circumstances of an individual non-citizen).

    In this case, to argue that community expectations would be tempered by the fact that the Appellant’s visa was reinstated by a decision of the Tribunal would be to have regard to the individual’s specific circumstances, which the Minister states (in Reasons [81]) are not relevant to his assessment of this factor. There is no difficulty in principle with the Minister having regard to the Government’s statement of community expectations, without undertaking any empirical assessment as to the content of those expectations: see, in the context of Ministerial Directions containing a similar statement of community expectations, DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [31] (the Court); Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; (2023) 297 FCR 662 at [33]-[36] (the Court).

Conclusions on Ground 2

88    The Appellant’s proposed Ground 2 should be rejected for the reasons given in XMBQ and RCWV (which are not properly distinguishable). The supposed distinction between a decision that “overrides” a Tribunal decision and a decision that “overtakes” a Tribunal decision runs counter to CRRN and to considered statements in Tereva. The argument therefore lacks sufficient merit for it to be in the interests of justice to grant leave to raise the argument for the first time on appeal, given that the other relevant factors weigh against granting leave (particularly an absence of an explanation for not raising the argument before: see [64] above).

CONCLUSION

89    The appeal should be dismissed with costs.

Associate:

Dated:    10 September 2025