Federal Court of Australia

Ibardaloza v Minister for Immigration and Citizenship [2025] FCAFC 176

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for leave to rely on a fresh ground be dismissed.

3.    The appeal be dismissed.

4.    The applicant pay for 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 Ibardaloza is a citizen of the Philippines who has resided in Australia since 1999. In August 2018, he was convicted of having caused grievous bodily harm in the course of an aggravated home burglary, for which he was sentenced to 7 years and 6 months imprisonment to be served concurrently with two other sentences imposed at the same time. On 6 March 2019, as a consequence of that sentence, the Minister cancelled mandatorily his Resident Return visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth). Mr Ibardaloza made representations to the Minister seeking to revoke the cancellation of his visa. On 14 February 2023, a delegate of the Minister refused to revoke the mandatory cancellation of Mr Ibardaloza’s visa under s 501CA(4) of the Act. The delegate’s decision was then the subject of successful review before the Administrative Appeals Tribunal (as it was then) on 2 May 2023: Ibardaloza and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2061. Following the Tribunal’s decision, on 12 September 2024, the Assistant Minister for Immigration and Multicultural Affairs, pursuant to s 501BA, decided to set aside the Tribunal’s decision and to cancel Mr Ibardaloza’s visa (hereafter the Minister’s decision). Mr Ibardaloza made an unsuccessful judicial review application of that decision before this Court: Ibardaloza v Minister for Immigration and Multicultural Affairs [2025] FCA 356 (primary judgment or J). It is that decision which is the subject of an application for leave to rely upon a new ground on appeal before this Court.

2    The appeal advances one ground (not in the same terms as raised below) in identical terms to that in Moli v Minister for Immigration and Multicultural Affairs [2025] FCFCA 175 namely that 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 decision under s 501CA(4), and in effect had misapprehended and failed to exercise the statutory task he was required to attend to.

3    Mr Ibardaloza contended that the primary judge dismissed ground 3 of the review application on the same basis as in Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 (at J[4]-[5] and J[29]-[31]). Mr Ibardaloza accepted that the ground raised is new and that leave is required to rely upon it. It is therefore for this Court to determine whether the ground possesses 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].

4    By reason of the appeal advancing the same ground as in Moli [2025] FCFCA 175, both matters were heard by this Full Court at the same time.

5    For the reasons set out in Moli [2025] FCAFC 175, and for the additional reasons which follow, Mr Ibardaloza has not established that the new ground possesses sufficient merit to warrant a grant of leave and leave is refused.

6    By the proposed ground, Mr Ibardaloza contended 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”. Mr Ibardaloza posited that “a mere reversal” occurred because the Minister in their reasons relied on the same conviction and sentence, the same material, and the same aspects of the national interest as relied upon by the Tribunal such that the Minister was simply reassessing and re-deciding the merits of his revocation request under s 501CA(4) of the Act. Mr Ibardaloza submitted that the Minister would only be attending to its task where there was some identification of error or justification as to why the Tribunal’s decision should be set aside.

7    To contextualise the impugned aspect of the primary judge’s reasons, the sole review ground below that is relevant to this appeal was ground 3. That ground contended that the Minister had no reasonable or rational basis to conclude that the circumstances of Mr Ibardaloza were so exceptional that it was in the national interest to cancel his visa.

8    This contention was rejected by the primary judge, at PJ[29]-[30], as follows:

The submissions advanced in support of ground 3 were to the effect that the Minister could not have been satisfied that it was in the national interest to cancel Mr Ibardaloza's visa because 'something more' was required beyond the fact that there had been a failure to meet the character test. This was framed as a need for 'exceptionality'.

The submissions in support of the ground proceeded on the basis of a construction of the terms of s 501BA that there needs to be something exceptional about that which is said to be 'in the national interest'. For reasons given in Moli that approach to construction of the provision must be rejected.

9    As the forgoing reveals, it may be doubted that his Honour did in fact, as part of his reasoning, contemplate and make findings that the Minister’s reasoning in this case did not constitute a mere reversal. As is apparent from the relevant review ground, the primary judge was addressing the need for “exceptionality”. This alone would be a basis on which to not grant leave to appeal on the new ground.

10    Nevertheless, for the reasons we set out in Moli [2025] FCAFC 175, we are of the view that, even if it could be implied that the primary judge had made such a finding in this case, the ground is without sufficient merit. This is so because the primary judge adopted his reasoning in Moli [2025] FCFCA 175 which we have accepted correctly articulates the requisite statutory task the Minister is required to attend to in order to conform with the demands of s 501BA of the Act. We do not accept Mr Ibardaloza’s articulation of what, in the Minister’s exercise of discretion under s 501BA, would amount to a “mere reversal” of the Tribunal’s decision. This approach offends what is required under the Act.

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

12    The Court notes that Counsel for Mr Ibardaloza 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