Federal Court of Australia

Moli v Minister for Immigration and Citizenship [2025] FCAFC 175

ORDERS

THE COURT ORDERS THAT:

1.    The Minister’s name be changed to “Minister for Immigration and Citizenship”.

2.    The application for leave to rely on the fresh ground on appeal is refused.

3.    The appeal be dismissed.

4.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Moli is a citizen of New Zealand who has resided in Australia since 2013. In June 2021, Mr Moli was sentenced to a three year term of imprisonment after being convicted of possessing a trafficable quantity of methylamphetamine with intent to sell or supply. On 20 July 2021, as a consequence of this sentence, the Minister cancelled Mr Moli’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). Mr Moli thereafter made representations to the first respondent (Minister) seeking to revoke the cancellation of his visa. On 6 January 2023, a delegate of the Minister refused to revoke the mandatory cancellation of Mr Moli’s visa under s 501CA(4) of the Act. The delegate’s decision was then the subject of successful review before the Tribunal on 3 April 2023: Moli and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 666. Following the Tribunal’s decision, Mr Moli resided in the community with his partner and two daughters for 16 months. Then, on 18 September 2024, the Assistant Minister, pursuant to s 501BA, decided to set aside the Tribunal’s decision and to cancel Mr Moli’s visa (hereafter the Minister’s decision). Mr Moli made an unsuccessful judicial review application to this Court: Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 (primary judgment or PJ). It is this decision which is the subject of an application for leave to rely upon a new ground on appeal.

2    The substituted notice of appeal advances one ground (not in the same terms as raised below): The primary judge erred by failing to find the Minister committed a jurisdictional error by acting on an incorrect understanding of what was required by s 501BA of the Act, namely that the Minister had “merely reversed” the Tribunal’s decision under s 501CA(4), and in effect had misapprehended and failed to exercise the statutory task he was required to attend to. Mr Moli accepted that the ground raised is new and therefore he requires leave to rely on it. It is therefore for this Court to determine whether the ground possessed sufficient merit when assessed on an impressionistic basis to warrant a grant of leave: EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; 311 FCR 155 at [7]-[10].

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

501BA  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 under Part 5 or 7

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

4    Mr Moli submitted that the primary judge erred in failing to find that the Minister had not exercised the power, under s 501BA, in a manner consistent with the Act, namely that the Minister’s decision was in effect a “mere reversal on the merits of the Tribunal’s decision”, contrary to the purported finding of the primary judge at [122] of his Honour’s reasons. Mr Moli contended that a “mere reversal” will occur where the Minister’s reasons rely on the same conviction and sentence, the same material and facts, and the same aspects of the national interest as relied upon by the Tribunal, such that the Minister did not attend to his task under s 501BA, but rather in effect reassessed or re-decided the revocation request under s 501CA(4) of the Act. According to Mr Moli, the Minister would only be attending to his task as required under s 501BA, where the matters described above (as apparent before the Tribunal and the Minister) were the same, where the Minister went on and identified some error or justification for departing from the Tribunal’s reasons.

5    The Minister submitted that, consistent with what the primary judge had found, given the Minister had identified the motivating aspect of the national interest and decided why, having regard to that identified aspect, the visa should be cancelled and the Tribunal’s decision set aside, the Minister had attended to its statutory task in the manner prescribed under the Act and there was no purported failure to do so by a “mere reversal on the merits”.

6    For the reasons which follow, Mr Moli’s contention does not possess sufficient merit to warrant a grant of leave and the Court refuses leave.

7    Mr Moli does not challenge at all the primary judge’s analysis of the power under s 501BA, set out at PJ[96]-[112]. It is worthwhile extracting this portion of his Honour’s reasons not only because we accept the force of the primary judge’s careful and helpful analysis but because it informs the consideration of the later impugned aspect of his reasons.

The proper construction of s 501BA

96    The following matters concerning s 501BA are established by the authorities:

(1)    the provision confers a discretionary power upon the Minister personally;

(2)    the matters stated in s 501BA(2) are pre-conditions that must be met before the power arises;

(3)    one pre-condition is that the Minister is satisfied that the cancellation of the person's visa is in the national interest;

(4)    the required state of satisfaction must be formed within the bounds of reasonableness and rationality;

(5)    the required state of satisfaction must be formed on the basis of a correct understanding of the law (particularly, a correct understanding of what is required by the pre condition);

(6)    the formation of the required state of satisfaction involves the making of a broad evaluative judgment;

(7)    what is in the national interest for the purposes of the provision is largely a political question; and

(8)    the concept of the national interest is undoubtedly broad but is not unbounded.

97    In addition, s 501BA operates within the legislative scheme as a form of national interest call in power by which the Minister may set aside a decision that has been made pursuant to that scheme (being a decision to the effect that a visa cancellation be revoked). Exercise of the power results in the setting aside of a favourable decision for the person concerned and its replacement with an adverse decision.

98    As the High Court has explained, identification of that which is in the national interest is a matter of political responsibility.

99    Put in Australian constitutional terms the national interest encompasses the full extent of that which is considered by the Executive Council of the Commonwealth comprising Ministers of State and by those Ministers acting in due discharge of the authority they hold as Ministers in the administration of their governmental departments to be in the national interest. By due discharge of their authority, I mean to indicate that the national interest would not encompass matters identified corruptly or for some improper purpose or otherwise in breach of the oath taken by Ministers. No doubt there are also matters which might be said to be outside that which is the national interest because they lack the requisite degree of importance or significance to form part of the national interest. This is not to say that they are outside the bounds of reasonableness. Rather, it is to say that even allowing for the fact that the national interest is a term which means that which is determined by those entrusted with the political authority to determine what is in the national interest there will be some matters which are outside the boundary of that which might be said to be in the national interest.

100    Consequently, what is in the national interest for the purposes of the Migration Act (particularly s 501BA) will depend upon views formed by the Minister in discharging their functions as a Minister responsible for the administration of the Migration Act. Hence, its description in Plaintiff S156/2013 as being 'largely a political question'. It follows that actions that may be in the national interest are not fixed. Nor may they be ascertained by reference to some rubric or standard or objective expression as to what they may comprise. They will change with the legitimately held views of those entrusted with governmental authority from time to time.

101    Nevertheless, the statutory language used in s 501BA (and other provisions) still requires the Minister to be satisfied that the cancellation is 'in' the national interest and there is work to be done by that required connection between the cancellation and the national interest in any case. Consequently, for the following reasons, it is not possible to have a kind of amorphous view that a specific act (the cancellation of a visa) in a specific instance (the case of Mr Moli) is in the national interest without any specific conception as to why that may be so.

102    Firstly, as the authorities make clear, the formation of the required state of satisfaction that cancellation is in the national interest is a pre-condition to the Minister having the discretionary power to cancel a visa.

103    Secondly, in considering whether the pre-condition has been met, it is important to distinguish the requirement for the Minister to be satisfied (on the one hand) from the subject matter about which the Minister is to be satisfied (on the other). For present purposes, the relevant matter about which the Minister must be reasonably satisfied is that cancellation of the visa, that is the visa held by the person concerned, is in the national interest. To form that state of satisfaction, the Minister must have in mind some aspect of the national interest that may pertain to the circumstances of the person to whom the visa has been issued.

104    Thirdly, the use of the preposition 'in' as a grammatical connection between the visa cancellation and the national interest is significant. It specifies a form of direct relationship between the cancellation of the visa and the national interest. It is the act of cancellation itself that must be in the national interest. Consequently, the Minister must be satisfied that some identified aspect of the national interest will be served, advanced or promoted by the cancellation of the person's visa.

105    Therefore, in order to form a state of satisfaction as to whether the cancellation of the visa of a particular person would be in the national interest, the Minister must be able to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why. If the Minister acts without any such formulation or purports to cancel a visa in circumstances where no reasonable person could be satisfied that the cancellation would serve, promote or advance the formulated aspect of the national interest, or makes a decision in circumstances where it may be adjudged to be legally unreasonable in the sense that no reasonable Minister might justify the cancellation by reference to any such formulation, then the pre-condition will not be met and the power to cancel will not arise.

106    The remaining issue, which is at the heart of the case advanced for Mr Moli, is whether there needs to be something exceptional about that which is said to be 'in the national interest'. I am not persuaded that the words used bear a construction that the matter of national interest must itself be exceptional in some way. The statutory language has no such express qualification. As I have explained, the boundaries of what may be in the national interest at any point in time are a function of the due discharge of ministerial responsibilities from time to time and hence are broadly political. Within the ambit of that broad field, the statutory language admits no qualification which requires the Minister to be satisfied that the cancellation will be in a category of national interest that is exceptional or especially important or has some form of national significance (whatever those terms may mean if indeed they had been used as qualifications to the expression 'in the national interest').

107    However, in my view, it remains significant that s 501BA is a discretionary power that resides within a legislative scheme. It is a scheme that includes the other national interest call in powers in s 501A and s 501B that are pre-conditioned in the same way. As has been explained, the scheme provides for decisions to be made on valid visa applications on the merits by a delegate (and, on review, by the Tribunal). In a case where s 501(3A) applies and representations are made to revoke the visa cancellation, in cases where the character test is not passed, the Minister must consider whether there is 'another reason' for the cancellation to be revoked. It is a decision that may be made by a delegate (and, on review, by the Tribunal).

108    The Minister also has power to publish directions as to the exercise of powers under the Migration Act, including what might be referred to as the character powers, which directions must be complied with by the decision-maker exercising the power: s 499. Significantly, within that scheme, s 65 provides for a binary decision by the Minister to grant or refuse a valid application for a visa. Further, within s 65 there is no reference to s 501A, s 501B or s 501BA. Of some contextual importance for present purposes, is the fact that s 65 provides that if the Minister is satisfied that the grant of the visa 'is not prevented by section … 501 (special power to refuse or cancel)' and various other criteria are met then the Minister is to grant the visa. The same pertains where the Tribunal considers a valid application for a visa, standing in the shoes of the Minister.

109    Therefore, each of the decisions the subject of the discretionary powers conferred by s 501A, s 501B and s 501BA is a decision made on the merits where the particular circumstances of the person may be brought to account with the consequence that a person may be granted a visa or allowed to continue to hold a visa even though they do not pass the character test. Also, as has been explained, the legislative scheme by which such decisions may be made (and reviewed) on the merits is itself said to have been enacted in the national interest.

110    Considered in that context, the legislative scheme indicates a construction of s 501BA to the effect that the formation of the state of satisfaction as to whether a visa cancellation is 'in the national interest' for the purposes of the pre-condition to the discretionary power to cancel a visa, requires the identification of some aspect of the national interest that means the ordinary merits adjudication process should not determine whether the person has a visa. Which is not to say that there needs to be some fault or correction required in the decision of the delegate or the Tribunal (as the case may be). Rather, it is to say that the aspect of the national interest that is the foundation for the Minister's satisfaction 'in the national interest' that a decision to revoke a visa cancellation should be set aside must itself be a reason why the decision to revoke the cancellation made pursuant to the legislative scheme (itself enacted in the national interest) should be reversed. In that limited sense, there is a requirement for a form of exceptionality.

111    However, it is not a requirement that would mean, as the submissions for Mr Moli tended to suggest, that the power conferred by s 501BA could only be exercised in cases where the national interest being served, advanced or promoted by the cancellation was itself in some special category of exceptionality. Rather, what is required is the identification of some aspect of the national interest that means that the decision made in accordance with a legislative scheme that is itself enacted in the national interest is to be reversed.

112    With those matters in mind, I will now address the grounds of review in the order in which they were advanced orally.

(Emphasis in original).

8    The sole review ground below relevant to this appeal was ground 3. That ground concerned whether the Minister had acted upon an erroneous view as to the scope of what may be considered to be in the national interest for the purposes of forming the required state of satisfaction, alternatively there was no reasonable or rational basis for the Minister to form the required state of satisfaction in the circumstances of this case.

9    Notably, under the heading “Ground 3: The national interest”, in ten paragraphs, the primary judge considered the broad expression of the national interest which was brought to bear in making the decision that Mr Moli’s visa should be cancelled, namely protection of the Australian community and the expectations of the Australian community which fell within matters that have previously been recognised by authorities as foundational to the national interest arising in a very considerable number of cases: PJ[114]-[116].

10    The primary judge considered that the mere identification of a matter of national interest is not enough in order to form the requisite state of satisfaction required as a pre-condition to the discretionary power to cancel the non-adverse decision made by the Tribunal to revoke the cancellation of Mr Moli’s visa.  What must be formed is an affirmative state of satisfaction that the cancellation of Mr Moli’s visa is “in” the national interest, even though there has been a decision on the merits in accordance with the legislative scheme that the cancellation of his visa should be revoked: PJ[117]. We respectfully agree.

11    The primary judge then, through this prism, considered what the Minister had done. His Honour referred to the Minister’s consideration of the risk to the community, agreeing with the finding made by the Tribunal, of the significant impact of drug trafficking on the Australian community such that even if there was a low risk of Mr Moli reoffending, that risk was unacceptable: PJ[119]. As to community expectations, his Honour referred to the Minister’s finding that the Australian community expects that non-citizens obey Australian laws while in Australia and, where there is “serious conduct in breach of this expectation”, the community expects the Government not to allow such a non-citizen to remain in Australia: PJ[120].

12    Therefore, having identified the manner in which the requisite state of satisfaction was to be reached (by identification of a matter in the national interest and then forming an affirmative state of satisfaction that the cancellation of the visa is “in” the national interest), and considering the Minister’s reasons, the primary judge went on to find that requisite state of satisfaction (in conformity with the Act) had been reached, at PJ[121], as follows:

Plainly, the Minister's view of the national interest is to the effect that involvement in dealing in illicit drugs is serious and is conduct of a kind that breaches a norm of behaviour expected of non-citizens who are in Australia on a visa. Further, in the Minister's view, there is a national interest in preventing the Australian community from being exposed to even a low risk of the consequent harm that would arise from reoffending of that kind by non-citizens. In the reasons of the Minister the consequences of that view for the circumstances of Mr Moli have been considered in some detail.

13    Mr Moli does not challenge this finding. Rather Mr Moli seeks to impugn the next paragraph, PJ[122], of his Honour’s reasons:

Further, the decision 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. Therefore, it was not an exercise of the power in circumstances that might be said to be inconsistent with the scheme of merits review provided for by the Migration Act.

14    Notably, his Honour commences with the adverb “further”, to indicate that in addition to his conclusion at PJ[121], the decision made reference to an identified matter and did not constitute a “mere reversal on the merits”. By this we understand his Honour’s reasons to mean that the Minister did, in fact, upon the identification of the matter in the national interest, thereafter go on to determine whether the cancellation of Mr Moli’s visa was in the “national interest”. This is consistent with his Honour’s earlier reasoning as to the need to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why: PJ[105]. We are of the view that this is undoubtedly correct.

15    We do not accept that there is a necessity, in order to achieve the requisite state of satisfaction commanded by s 501BA, where the Minister relies on the same conviction, facts and material, to then go on to identify some fault or correction required in the decision of the delegate or Tribunal (as the case may require).

16    The Act does not stipulate any factors that the Minister must have regard to when achieving the requisite state of satisfaction regarding whether the cancellation is in the national interest: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; 306 FCR 156 at [44] per Derrington and Hespe JJ; Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61]; Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1 at [20]–[21], [24]. This is so, given “national interest” is a perspective of a largely political nature: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]. There may be factual overlap between matters considered by the Tribunal and the Minister. Indeed, as was the case here, the Minister may agree and draw on aspects of the Tribunal’s reasons. However, each of their statutory tasks (that of the Minister and the Tribunal required under ss 501BA and 501CA(4) respectively) command the reaching of different states of satisfaction as a result of answering different questions dictated by the statute.

17    We do not accept that by reason of the fact that, by the introduction of various Directions (as given force by s 499 of the Act), which include consideration of matters which may be foundational to the national interest, there is a need for the Minister to do more, when exercising his or her power under s 501BA, than identified by the primary judge. Whether or not the Tribunal considered like matters, the Tribunal was not undertaking an assessment of the national interest in the manner required of the Minister.

18    The relevant findings, which are not challenged by Mr Moli in his proposed appeal, were that the Minister had undertaken the task as required by s 501BA: Namely, the Minister identified the relevant aspect of the national interest and reached the requisite state of satisfaction that, because of that identified aspect, it was in fact in the national interest to cancel Mr Moli’s visa. It was not, however, necessary or inevitable that, being so satisfied, the Minister was bound to cancel the visa: The power to cancel a visa under s 501BA is discretionary and is an assessment on the merits once the identified national interest pre-condition is met.

19    Previous authorities have recognised that the Minister is not required, under s 501BA, to identify error or the need for correction in the Tribunal’s reasons: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another [2022] FCAFC 142; 294 FCR 270 at [28], [39]; CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [32]-[34]. Nor does the Minister need to identify some additional fact or circumstance beyond those considered by the Tribunal so long as the Minister attends to his or her task of identifying the relevant aspect of the national interest and thereafter reaching the requisite state of satisfaction that cancellation is “in” the national interest.

20    When understood in this context, we can discern no error in the primary judge’s conclusion at PJ[122]: The Minister had performed the statutory task required by s 501BA. In context, a mere reversal of the Tribunal’s decision would constitute a decision that effectively disagrees with the Tribunal’s decision as a matter of merit without having undertaken the necessary assessment as to the national interest as identified by the primary judge. As the primary judge found, this did not occur in this case.

Conclusion

21    For these reasons, the application for leave must be refused. The appeal must be dismissed and the applicant should pay the first respondent’s costs of the application and appeal.

22    The Court notes that Counsel for Mr Moli accepted a referral from the Court to provide pro-bono assistance, for which the Court was greatly assisted and appreciates.

Associate:

Dated:    8 December 2025