Federal Court of Australia

GFE24 v Minister for Immigration and Citizenship FCAFC [2025] 165

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time be granted.

2.    The appellant be granted leave to file the Affidavit dated 30 October 2025.

3.    The appellant’s affidavits of 14 May 2025 and 30 October 2025 be supressed.

4.    The respondent’s name be amended to the Minister for Immigration and Citizenship.

5.    The appellant be granted leave to file a notice of appeal in the form of Exhibit CCK6 to the affidavit of the appellant dated 30 October 2025.

6.    The appeal be dismissed.

7.    The appellant pay the respondent’s costs of the application and appeal.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

COLLIER J:

1    I have heard the reasons for decision of Jackman J stated by his Honour, as well as the additional reasons of Younan J. I respectfully and gratefully agree with and adopt the reasons of Jackman and Younan JJ, and the orders proposed by Jackman J with which Younan J also agrees.

Associate:

Dated:    24 November 2025

JACKMAN J:

2    The applicant seeks to appeal from the decision of the primary judge in GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193 (the Primary Judgment or PJ). The primary judge dismissed the applicant’s application for judicial review of a decision of the respondent (the Minister) made pursuant to s 501BA of the Migration Act 1958 (Cth) (the Act) to set aside a decision of the Administrative Appeals Tribunal (the Tribunal) and to substitute a decision to cancel the applicant’s Child (Class AH) (Subclass 101) visa.

3    The applicant required an extension of time as he did not file his appeal within the prescribed limits. Any appeal had to be filed by 14 April 2025. The applicant attempted to file an appeal on 3 April 2025, but it appears that there was a delay in the Registry reviewing that document, and he was then told that he had filed the wrong form. In circumstances where the delay is not particularly long, the applicant appears to have taken steps to commence the appeal within time, he was legally unrepresented and was in immigration detention at the time he sought to commence the appeal, and no prejudice would be occasioned to the Minister, the Minister commendably did not oppose an extension of time. Accordingly, we granted leave to the applicant to file the Notice of Appeal in the form exhibited to his affidavit of 30 October 2025 and marked Exhibit CCK6, subject to the deletion of the Tribunal as the second respondent as proposed by the applicant. Having granted that leave, it is appropriate to refer to the applicant in these reasons as the appellant. The notice of appeal raises the same three grounds that were advanced before the primary judge.

4    The appellant’s visa was cancelled by a delegate of the Minister under s 501(3A) following the appellant’s conviction in the District Court of Queensland of one count of rape, for which he was sentenced to a term of imprisonment of five years and six months. The appellant sought revocation of the visa cancellation under s 501CA(4) of the Act, which was refused by a delegate of the Minister. The appellant sought merits review of the delegate’s non-revocation decision in the Tribunal, and on 30 May 2024 the Tribunal made a decision setting aside the delegate’s decision and substituting a decision to revoke the visa cancellation.

5    On 4 June 2024, the Minister made a decision under s 501BA(2) to set aside the Tribunal’s decision and cancel the appellant’s visa. The Tribunal had not then published its reasons for its decision setting aside the delegate’s non-revocation decision. The Tribunal published its reasons on 13 June 2024.

6    At the time of the Minister’s decision, s 501BA of the Act provided as follows:

Cancellation of visa-setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister — natural justice does not apply

(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), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

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

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable by application under Part 5

(5)    A decision under subsection (2) is not reviewable by application under Part 5 or 7.

7    Ground 1 of the notice of appeal contends that the Minister’s decision was affected by jurisdictional error because it is said to have been a mandatory requirement for the exercise of power under s 501BA(2) that the Minister consider the reasons for the Tribunal’s decision under s 501CA(4) to revoke the cancellation of a non-citizen’s visa. That would require, on the appellant’s argument and in a case such as the present, that following the decision of the Tribunal under s 501CA(4) the Minister wait for the Tribunal to issue its reasons for decision before the Minister can consider whether to exercise the power under s 501BA(2).

8    Whether the appellant’s argument is correct depends on the proper construction of s 501BA. There are three preconditions to the exercise of the power in s 501BA(2):

(a)    first, that the Tribunal has made a decision (s 501BA(1));

(b)    second, that the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) (on the basis of s 501(7)(a), (b) or (c)), or s 501(6)(e); and

(c)    third, the Minister is satisfied that the cancellation is in the national interest.

9    As to the first of those preconditions, the primary judge correctly drew a distinction between the decision of the Tribunal and the reasons for that decision: PJ at [43]. That was supported by reference to related legislative provisions. First, s 501G(1) (which is also found within Pt 9 of the Act) requires that when a “decision” is made under s 501BA, 501CA or other specified provisions, the Minister is to give written notice that sets out “the decision” and the “reasons … for the decision”. Second, s 500(1)(ba) of the Act provided that an application may be made to the Tribunal for the review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa, thus contemplating that the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) would apply to that process unless excluded or modified by the Act: see Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [54]–[57] (French CJ, Kiefel, Bell and Keane JJ). Section 43 of the AAT Act, dealing with the Tribunal’s decision on review, formed part of the statutory context relevant to the construction of s 501BA, and s 43 clearly distinguished between the Tribunal’s decision and its reasons: Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [41] (Logan, Steward and Jackson JJ). Accordingly, the primary judge found that when s 501BA refers to the Tribunal’s decision, it cannot be understood as encompassing the Tribunal’s reasons for that decision: PJ at [43]. I respectfully agree.

10    There is nothing explicit in the terms of s 501BA that would require the Minister to have regard to the Tribunal’s reasons. The appellant submits that the aspect of the power under s 501BA(2) concerning the setting aside of the decision advances his proposed construction, namely that the Minister is required in all cases to consider the Tribunal’s reasons for decision under s 501CA(4) before a lawful exercise of power under s 501BA(2) could occur. The Minister submits, and I accept, that that argument fails to grapple with the extraordinary nature of the power invested personally in the Minister by s 501BA.

11    As the Minister submits, s 501BA is one of a number of non-compellable, personal ministerial powers in the Act (see also, for example, ss 501A and 501B). Each of those powers invests the Minister with power to act in the national interest to reverse a decision of a delegate or the Tribunal, the latter having conducted a merits review of a delegate’s decision, the latter having conducted a merits review of the delegate’s decision. Where s 501BA is used by the Minister to set aside a decision of the Tribunal under s 501CA(4), that relevantly follows a merits review under s 500(1)(ba) of the Act. By setting aside the Tribunal’s decision, the Minister overrides the Tribunal’s decision: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270 (Tereva) at [28] (Mortimer J) and [39]–[40] (Bromwich J). It is not merely a power that enables the Minister to perform some kind of “review” of the Tribunal’s decision, as the primary judge said at PJ [44]. The primary judge there correctly noted that the power under s 501BA is fundamentally different from the exercise undertaken by the Tribunal under s 501CA, citing Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ).

12    As an “override” power, as the primary judge reasoned, the Minister may exercise the discretion under s 501BA for reasons that are entirely different from the reasons given by the delegate or the Tribunal for exercising the discretion to set aside the revocation decision under s 501CA. In particular, the Minister in exercising the discretion under s 501BA must consider the national interest, whereas the Tribunal is not called upon to make that assessment. As Owens J put the point in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [34]:

Because the criteria against which the respective decision-makers’ powers are to be exercised differ, it is perfectly possible that the Minister might agree entirely with the Tribunal’s reasoning and decision in the context of the basis upon which the power was required to be exercised. It is the fact that the Minister forms the view that the result is contrary to the national interest that enlivens the “override” power, and nothing more. Once more, what is being “overridden” is the result, quite independently of the reasoning that produced it.

13    The appellant submits that while it is accepted that, in exercising the power, the Minister is not required to engage in a rebuttal of the Tribunal’s reasons, that does mean that it is intended that the Minister can act without any regard to the Tribunal’s reasoning. However, as the Minister submits, there is no textual or contextual basis for such a construction, nor does a consideration of the purpose of the Minister’s extraordinary power in s 501BA support it. As the primary judged accepted (at PJ [44]), the Minister may exercise the discretion under s 501BA for reasons that are entirely different from the reasons given by the delegate or the Tribunal for exercising the discretion to set aside the revocation decision under s 501CA. The Tribunal was required to comply with a ministerial direction in making its decision under s 501CA (s 499(2A)). By contrast, the Minister’s identification of factors pertaining to the national interest is broad and evaluative and is largely a political question. There is no prescription as to what must be included in the national interest in any particular case.

14    The appellant also calls in aid of his construction the principle of legality, arguing that a construction of s 501BA(2) that would enable the Minister to ignore the Tribunal’s reasons would be “to overthrow fundamental principles or depart from the general system of law”, and there was no warrant for such a construction absent an intention of irresistible clarity. However, the provision is absolutely clear that the Minister’s power is exercisable only when the Minister determines that it is in the national interest to cancel the visa. It is well established that the concept of 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: EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155 at [31] (Hill J, with whom Cheeseman and Owens JJ relevantly agreed).

15    As to the purpose of the provision, the power in s 501BA was introduced into the Act as part of a suite of amendments to “strengthen the powers to… cancel a visa on character grounds” and “strengthen the Minister’s personal powers to cancel a visa” on character grounds: Explanatory Memorandum to the Bill that became the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). As the Minister submits, the provision does not operate only in cases of emergency. However, it is conceivable that there will be occasions where immediate action is desired to be taken by the Minister following a decision of the Tribunal, at a time when its reasons have not yet been given, that would have had the effect of reinstating a non-citizen’s visa. There is no reason why the Minister should not be able to use the power in s 501BA at that stage of the process.

16    I note the tentative suggestion by Mortimer J in Tereva at [28] by way of obiter dicta that it may be an error for the Minister not to consider the Tribunal’s reasoning at all. To the extent that that statement may be thought to apply to the present circumstances, I respectfully disagree for the reasons given above.

17    Accordingly, I reject ground 1.

18    Ground 2 of the notice of appeal contends that the primary judge erred by not holding that the Minister unreasonably reached the purported state of satisfaction that cancellation of the appellant’s visa was in the national interest or otherwise failed to comply with the implied condition that the s 501BA power be exercised reasonably.

19    It is common ground that the reasonableness of a decision is to be assessed at the time of the decision: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). It is also common ground that the Minister’s formation of satisfaction for the purposes of s 501BA(2) must be arrived at reasonably. In XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115 at [90]–[94], Stewart and Needham JJ summarised the principles in relation to legal unreasonableness such as to amount to jurisdictional error in the context of s 501BA(2), in substance as follows (omitting citations):

(a)    a conclusion of legal unreasonableness such as to amount to jurisdictional error can be reached either in relation to the outcome of the decision (for example, if it is so devoid of plausible justification that no reasonable person could have taken that course) or to the reasoning process by which the decision-maker arrived at the exercise of power;

(b)    the latter quality of unreasonableness has been expressed in different ways by the High Court, including (i) 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; (ii) that the relevant decision lacks an evident and intelligible justification; (iii) there is an absence of justification, transparency and intelligibility within the decision-making process; and (iv) it is not possible to comprehend how the decision-maker made the findings;

(c)    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, and mere strong disagreement with the reasoning does not establish jurisdictional error;

(d)    where 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; and

(e)    it is immaterial if other reasons, not given by the decision-maker, might justify the decision, and 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.

20    The appellant submits that given that the Minister made his decision under s 501BA(2) at a time when he did not have the benefit of the findings and reasoning of the Tribunal whose decision was to be set aside, the Minister had to be satisfied that it was in the national interest to exercise the power urgently at that time, in the absence of the Tribunal’s reasons. The appellant submits that the Minister’s reasons do not demonstrate any intelligible justification for the emergency use of power before receipt and consideration of the Tribunal’s reasons. Further, the appellant submits that the Minister must be taken to have appreciated that the Tribunal had good reasons for reaching a conclusion contrary to that contended for by the Minister’s representatives before the Tribunal, and thus no decision-maker could have proceeded to set aside the Tribunal’s decision without a consideration of the Tribunal’s reasoning, or at least without making necessary findings which would permit a conclusion that making a decision without the benefit of those reasons was in the national interest. The appellant draws attention to the Minister’s Statement of Reasons including, among the relevant matters of national interest, the protection of the community and the expectations of the Australian community, which correspond to matters which the Tribunal was required to take into account. The appellant submits that the Minister’s Statement of Reasons indicates that the Minister did not consider, let alone make any finding, as to the likely period of time in which the appellant might be at large in the Australian community as a consequence of the decision before the Tribunal’s reasons were published, for example by way of discussing the average delay in obtaining reasons in such matters from the Tribunal. The appellant further submits that there is no finding that the risk posed by the appellant was such that, in addition to it being in the national interest that his visa be cancelled, it was in the national interest that he should immediately be removed from the community.

21    I reject those submissions. The Minister’s Statement of Reasons dated 4 June 2024 makes it clear that the Minister was proceeding on the basis that the appellant had committed very serious sexual offences (at [19]–[28]), and that there was more than a negligible risk of the appellant reoffending (at [48]). The Minister reasoned that “the need to protect the Australian community from criminal or other serious conduct weighs significantly in support of cancellation in this case in the national interest” (at [49]). The Minister referred also to the expectations of the Australian community that non-citizens who have engaged in serious conduct in breach of Australian law, or where there is an unacceptable risk that they may do so, would not be allowed by the Government to enter or remain in Australia (at [50]–[51]), and expressed the Government’s view as being that those expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (at [52]). In expressing his conclusion on national interest considerations, the Minister said in relation to the appellant (at [55]):

I have found his offending to be very serious, especially due to the nature of the sexual offence he has committed in Australia. I also consider that the Australian community does not generally expect a person who has been convicted of these offences to be able to continue to hold a visa and remain in the Australian community.

Accordingly, there was an evident and intelligible justification in the Minister’s reasons for the Minister to act promptly in cancelling the appellant’s visa.

22    Accordingly, I reject ground 2.

23    Ground 3 of the notice of appeal contends that the primary judge erred by not finding that the Minister’s decision was affected by a reasonable apprehension of bias. The appellant contends that a fair-minded lay observer might reasonably have an apprehension that the Minister might not bring an independent mind to the decision under s 501BA, in reliance on the principle stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

24    At the outset, I note that the Minister does not rely on s 501BA(3), which on its face might be thought to exclude the operation of the rule concerning apprehended bias: see Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [40] (Derrington and Hespe JJ, with whom Feutrill J agreed). In the absence of any submission by the Minister concerning s 501BA(3), it is neither necessary nor desirable to deal with the operation of that provision. Substantially the same approach was taken in Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 149 at [51]–[54] (Rangiah, Snaden and Wheatley JJ).

25    The appellant’s submissions focus on the Minister’s treatment of the evidence before the Tribunal of a consultant psychologist, Dr Freeman. In his Statement of Reasons, the Minister took into account the report by Dr Freeman, who assessed the appellant as being in the “low-risk” category for violent and sexual recidivism and expressed the view that his criminal offending could be attributed to alcohol and his young age (at [32]). The Minister referred to concerns raised about Dr Freeman’s ability to give an objective and impartial opinion, and said that he had approached Dr Freeman’s evidence with some caution, noting some inconsistency in the appellant’s evidence to the Tribunal about his alcohol use prior to the offending, to which Dr Freeman had not ascribed any weight in drawing assessments of recidivist risk (at [33]). The appellant submits that the only concerns about Dr Freeman’s evidence in the material before the Minister were those advanced on behalf of the Minister in submissions to the Tribunal.

26    The primary judge made extensive reference to the reasoning in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [61], [72], [99]–[100], [102] and [105] (Gleeson CJ and Gummow J), [181], [187] and [190]–[192] (Hayne J), and [245] (Callinan J), and concluded (at PJ [74]) that a fair-minded lay observer would be cognisant of the dual roles of the Minister as the proper respondent in any merits review proceedings in the Tribunal and as the decision-maker under s 501BA, as contemplated by Parliament in conferring the s 501BA power upon the Minister. The appellant accepts the validity of that reasoning, but submits that the factor which distinguishes the present case from Jia Legeng is not merely the adoption of the Minister’s position before the Tribunal, but that factor when combined with the failure of the Minister to consider the Tribunal’s reasons for decision at all. The appellant submits that the Minister must have appreciated that, in order for the Tribunal to have found in favour of the appellant, the Tribunal must have evaluated the evidence in a way which departed from the Minister’s stated position before the Tribunal. The appellant thus submits that a fair-minded lay observer might conclude that the Minister in the circumstances might have approached his task with a closed mind, because the lay observer would expect that a Minister with an open mind would be curious as to the Tribunal’s reasons for reaching a different conclusion from that adopted by the Minister’s representatives when acting as a proper contradictor or protagonist in the Tribunal proceedings. The appellant submits that the minimum that a fair-minded bystander would expect to see in the circumstances would be that the Minister would at least read the Tribunal’s reasons for reaching a conclusion which was different from that urged upon it by the Minister’s representatives before the Tribunal, or possibly provide an explanation for why it was not possible to wait for the Tribunal decision.

27    The Minister submits, and I accept, that in applying the apprehended bias test, the fair-minded lay observer is to be imputed with knowledge of the key elements of the statutory scheme: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [59] (Nettle and Gordon JJ); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23] (Kiefel, Bell, Keane and Nettle JJ). As the Minister submits, and consistently with the primary judge’s reasoning, the fair-minded lay observer would be aware:

(a)    of s 501(3A) of the Act that requires the Minister to cancel a visa where the visa holder is serving a sentence of at least 12 months’ imprisonment, and of s 501CA(4) of the Act that empowers a delegate, and on review, the Tribunal, to revoke that cancellation;

(b)    of the dual roles of the Minister as the proper respondent in any merits review proceedings in the Tribunal and as the decision-maker under s 501BA;

(c)    that the legislature expressly conferred a power upon the Minister to set aside the Tribunal’s decision and cancel the visa under s 501BA in the national interest, which is a matter about which the Tribunal was not required to be satisfied when it made its decision under s 501CA(4); and

(d)    that the Minister was permitted to make a decision under s 501BA(2) without, and without waiting for, the Tribunal’s reasons for its decision under s 501CA(4).

28    The fair-minded lay observer would regard it as a matter for the Minister to treat Dr Freeman’s evidence with whatever caution he considered it was appropriate to apply in the circumstances and on the information that was available to him. The Minister’s Statement of Reasons (at [32]–[33]) referred to the parties’ competing closing written submissions concerning Dr Freeman’s evidence which were provided to the Tribunal on the s 501CA(4) review, including those advanced by the appellant both in chief and in reply. Whatever conclusions the Tribunal ultimately may have reached about Dr Freeman’s evidence, they were not before the Minister at the time of his decision and were thus in themselves irrelevant to an assessment of what the fair-minded lay observer might have apprehended in relation to the Minister’s decision. As I have said in relation to ground 2, there was an evident and intelligible justification in the Minister’s reasons for acting promptly in cancelling the appellant’s visa. There is nothing which indicates that the Minister might not give due consideration to the merits of the various competing circumstances and arguments. The Minister’s statement that he approached Dr Freeman’s evidence with some caution, in circumstances where the Minister did not wait to see the Tribunal’s reasoning, does not result in a conclusion that the Minister’s decision was affected by a reasonable apprehension of bias.

29    Ground 3 should thus be rejected.

30    The appeal should therefore be dismissed with costs.

Associate:

Dated:    24 November 2025

YOUNAN J:

31    I agree with the orders proposed by Jackman J, for the reasons his Honour gives, to which I add the following reasons for rejecting the appeal.

32    The submission that the Minister should await the reasons of the Tribunal before making a determination under s 501BA of the Migration Act, is premised on a false assumption as to the relevance of those reasons to the Minister’s determination.

33    The Minister’s power in s 501BA(2) is predicated on a finding that the person does not pass the character test on certain grounds, and that the Minister is satisfied that the cancellation of the visa is in the national interest.

34    The first criterion poses a common question (that is, to both the Tribunal and the Minister). It is not a matter of discretion. The person does or does not pass the character test based on certain statutory criteria, in this case a substantial criminal record in circumstances where the person has been sentenced to a term of imprisonment of 12 months or more.

35    The second criterion is a matter of the satisfaction of the Minister, in relation to which the Tribunal has no part to play.

36    Once that is accepted, the question is begged: Why should the Minister await the reasons of the Tribunal on a question as to whether there is another reason for the revocation of the cancellation of the appellant’ visa (the appellant having failed the character test), for the purposes of s 501CA(4)(b)?

37    If the answer is that there are factors in the Tribunal’s consideration of that question that are relevant to the Minister’s satisfaction for the purposes of s 501BA(2)(b), such as the nature and seriousness of the appellant’s conduct; the nature of any prospective harm to individuals or the Australian community, and the risk of recidivism, then it is necessary to draw a distinction between:

(a)    the relevance of the factor, on the one hand; and

(b)    the relevance of the Tribunal’s consideration of that factor, on the other.

38    The appellant has not demonstrated why the Tribunal’s consideration of a factor in its determination of whether to revoke the cancellation of the appellant’s visa is mandatorily relevant to the Minister’s consideration of whether cancellation of the visa is in the national interest.

39    The factors considered by the Tribunal may (or may not) be common with certain factors considered by the Minister in the exercise of the discretion under s 501BA. As much is acknowledged by the Minister in [6] of the Statement of Reasons, who, in the absence of the reasons of the Tribunal, had regard to the parties’ closing written submissions which address the evidence adduced before the Tribunal.

40    However, the significance of reliance on those submissions, and any reliance on the reasons of the Tribunal is not because they are the reasons of the Tribunal. The Tribunal’s consideration (by way of the weight it places on certain factors) is relevant to its determination of whether there is another reason why the cancellation decision should be revoked. The weight that the Tribunal places on certain factors is not relevant to the Minister’s determination that cancellation is in the national interest. It is not relevant in the sense that it is not a constraint on the power of the Minister under s 501BA. To the extent that the obiter remarks in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 at [28] (per Mortimer J) and [159] (per Thomas J), suggest otherwise, I respectfully disagree with them.

41    The absence of an explanation for why the Tribunal’s consideration of potentially common factors is relevant, exposes the absence of a rationale for the appellant’s construction of s 501BA. Why are the Tribunal’s reasons a statutory precondition to the exercise of the Minister’s power to cancel a visa in the national interest? The Tribunal’s decision to revoke a decision to cancel a visa – in which case the visa subsists – is the occasion for the consideration of whether the visa should be cancelled. The Tribunal’s reasons serve no such function.

42    The appellant proceeds on the basis that the Minister’s power under s 501BA must be exercised urgently in order to justify disregard of the Tribunal’s reasons. In that regard, it is necessary to distinguish between that which is exigent (requiring action) and that which is urgent (requiring immediate action). The former may be said to follow from a determination of the national interest, but the latter is not a necessary precondition to, nor does it necessarily follow from, the exercise of the power to make that determination.

43    Finally, the appellant’s argument on the principle of legality assumes the conclusion, that is, that it is a ‘fundamental principle or departure from the general system of law’ that the Minister should consider the Tribunal’s reasons. I would reject the argument on that basis alone.

Associate:

Dated:    24 November 2025