Federal Court of Australia

Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT

Introduction and summary

1    The appellant was born in Vietnam in 1996 and is a Vietnamese citizen. He arrived in Australia on 18 January 2012, aged 15. On 20 May 2014, he was granted a Class BS Subclass 801 Partner (Residence) visa. He pleaded guilty in the County Court of Victoria to the offence of recklessly causing serious injury (RCSI offence) and, on 14 February 2020, he was sentenced to 3 years’ imprisonment with a non-parole period of 18 months. As the sentence was for a term of imprisonment of 12 months or more, he did not pass the character test set out in ss 501(6)(a) and 7(c) of the Migration Act 1958 (Cth) (Act). Consequently, on 7 August 2020, his visa was mandatorily cancelled under s 501(3A) of the Act.

2    Between September 2020 and November 2022, the appellant and his solicitors made submissions seeking revocation of the cancellation of his visa under s 501CA(4) of the Act, on the basis that, notwithstanding he did not pass the character test, “there is another reason why the [cancellation] decision should be revoked”. On 16 February 2023, a delegate of the respondent (Minister) refused to revoke the cancellation of his visa (delegate’s decision). On 22 February 2023, the appellant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 8 May 2023, the AAT set aside the delegate’s decision and revoked the cancellation of the visa, which had the effect of reinstating the visa (AAT decision).

3    On 10 June 2024, 13 months after the appellant had been released into the community as a result of the AAT decision, the Minister set aside the AAT decision and cancelled the appellant’s visa pursuant to s 501BA of the Act (Minister’s decision). The Minister did so on the basis that he was satisfied that the appellant did not pass the character test and that the cancellation was in the national interest. As he was entitled to do so under s 501BA(3), the Minister did not afford the appellant an opportunity to be heard prior to making his decision.

4    On 15 July 2024, the appellant sought judicial review of the Minister’s decision. The appellant relied on the following grounds:

(a)    “The facts, materials and circumstances of the conduct of the minister in setting aside [the AAT decision] (made within jurisdiction) were outside the boundary of the term ‘national interest’” (ground 1);

(b)    “The discretion of the minister miscarried, because of the following factors, each of which are of sufficient force to establish jurisdictional error: a. Declining to afford the applicant an opportunity to be heard on why the national interest should be invoked some 13 months after the AAT decision was made given that the applicant was living freely in the community over that period” … (ground 2(a)); and

(c)    “The minister’s satisfaction in relation to the ‘national interest’ was not reasonably obtained” (ground 3).

5    On 17 December 2024, the primary judge dismissed the application for review with costs (Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1456 (Hespe J)) (J).

6    In his notice of appeal dated 6 February 2025 against the primary judge’s decision – which was filed out of time with the Court’s leave – the appellant relied on the following three grounds:

(a)    the primary judge “erred by failing to find that, the facts, matters and circumstances of the appellant did not have a sufficient or any dimension of national interest to justify setting aside” the AAT decision;

(b)    the “depth and breadth of the power of the minister to determine the term ‘national interest’ was too broadly defined” by the primary judge; and

(c)    the primary judge “erred in her consideration of proportionality through failing to properly appreciate that the pathway of proportionality is a distinct and different pathway to determine unreasonableness and consequentially Her Honour wrongly failed to find that the decision of the minister was disproportionate”.

7    For the reasons that follow, the appeal will be dismissed.

Relevant provisions of the Migration Act 1958

8    Under s 501(3A) of the Act, the Minister must cancel a visa granted to a non-citizen if the Minister is satisfied that the non-citizen does not pass the character test. In combination, ss 501(6)(a) and 501(7)(c) provide that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more. Under s 501CA(3), the Minister must, as soon as practicable after a cancellation of a visa under s 501(3A), provide to the non-citizen information about the cancellation decision and invite them to make representations to the Minister about revocation of the cancellation decision. Section 501CA(4) stipulates that, where the non-citizen makes representations, the Minister may revoke the cancellation decision if the Minister is satisfied that the non-citizen passes the character test or “there is another reason why the [cancellation] decision should be revoked”. During the period relevant to this proceeding, s 500(1) specified that, if the delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4), the non-citizen could apply to the AAT for merits review of the non-revocation decision. The AAT was replaced by the Administrative Review Tribunal on 14 October 2024.

9    Section 501BA of the Act confers power on the Minister to set aside a decision of the AAT to revoke the cancellation of a visa. Prior to 14 October 2024, it relevantly 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 by application under Part 5 or 7

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

The appellant’s offending

10    The appellant’s father passed away in 2009, before the appellant arrived in Australia with his mother and younger sister from Vietnam in 2012. The appellant began consuming alcohol at around 13 years of age and used cannabis from the age of 18.

11    The appellant’s criminal record dates back to April 2016 and includes the following offences: cultivating a narcotic plant (cannabis); dangerous driving while pursued by police; theft; attempt to commit an indictable offence; failing to answer bail; theft from a motor vehicle; obtaining property by deception; dishonestly assisting in the retention of stolen goods; committing an indictable offence while on bail; unlicensed driving; contravening a community correction order; dealing with property suspected of being the proceeds of crime; possession and use of cannabis; and recklessly causing serious injury.

12    The appellant committed the RCSI offence on 21 November 2017, when he was 20. As we have already stated, on 14 February 2020, he was sentenced to 3 years’ imprisonment, with a non-parole period of 18 months, for that offence. Because the submissions of counsel for the appellant relied heavily on the nature and circumstances of the appellant’s offending and the sentence imposed on him, it is necessary to quote extensively from the sentencing judge’s remarks regarding: the circumstances of the offending; the victim’s injuries; matters in mitigation; and the objective gravity of the offending. The sentencing judge relevantly said the following (Director of Public Prosecutions v Luong [2020] VCC 89 at [3] to [14], [25], [30], [32] to [37] and [40] to [45] (Judge Gamble) (citations omitted)):

Circumstances of the offending

3    At the relevant time, you and the victim were known to each other and aged 20 and 16 years, respectively.

4    Your girlfriend was a Facebook friend of the victim and had seen him around in Springvale. A few months earlier, after you and your girlfriend had commenced dating, the victim started calling her on Facebook messenger. Annoyed, she eventually answered, only to be asked multiple times whether she wanted to ‘[f..k]’. She then hung up but did not tell you about the incident until a few days later.

5    At approximately 9pm on 21 November 2017, the victim arranged to purchase cannabis through a friend, Mr Zahiti. As arranged, he attended a shed at the rear of a house in Springvale at 9.30pm so as to effect that transaction. He was already familiar with the address and knew one of the persons who lived there, a person named ‘Si Si’. His girlfriend accompanied him to the shed while some of his other friends waited on the street at the front of the property.

6    On entering the shed, the victim noticed that in addition to Mr Zahiti, about 10 other people were present, mostly males. Of those, he recognised you, Mr Luong, as well as Si Si and another person named Thomas.

7    As he was leaving the shed after completing the transaction with Mr Zahiti, the victim noticed a pair of scissors on a table.

8    At about that time, you stood up, grabbed him by the neck, and asked him to say ‘sorry’ to your girlfriend. He declined and walked out to the rear yard of the property. As he did so, he was punched to the back of the head by someone. He then turned around and saw a number of the males from inside the shed coming at him.

9    Having just armed yourself with the scissors, you then lunged at him two to three times. Your attempts to cut him were unsuccessful, however, as he managed to take evasive action to avoid contact with the weapon you were wielding. With the exception of Mr Zahiti, the other males then joined in the assault by punching the victim to the face, head and body. Although he tried to defend himself, the victim was soon forced to the ground. As he fell, you stabbed him in the back three times with the scissors, causing him immediate pain.

10    The victim then managed to regain his feet and escape. As he ran away, you chased after him saying ‘Say sorry, say sorry’. He then told you he didn’t know what he’d done.

11    Once he was able to rejoin his girlfriend and friends at the front of the property, they endeavoured to assist him and arranged for the police and ambulance to attend nearby. By that stage, the victim was in a lot of pain and struggling to breathe.

Injuries sustained by the victim

12    On initial medical examination, the victim was found to have sustained three stab wounds, approximately five millimetres in diameter, to the mid and lower back area. He was then conveyed by ambulance to the Alfred hospital where he was treated until being discharged six days later.

13    A detailed medical examination of the victim revealed the following injuries:

…

•    Two large bilateral tension pneumothoraxes (collapsed lungs).

14    … The expert medical opinion obtained was to the effect that if those injuries to the lungs had gone untreated, the victim would have died.

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Criminal record

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25    Your current offence is very troubling and represents a significant escalation in the seriousness of the offending in which you have been prepared to engage.

Personal circumstances

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30 … You acknowledge having anger management issues, but have yet to address them by means of undertaking an anger management course or engaging in counselling with an appropriately trained professional.

Matters in mitigation

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32    You offered to plead guilty to this offence at what I regard to be an early stage of these proceedings. …

33    The issue of remorse is a nuanced one, however. Whilst I am prepared to accept that your preparedness to plead guilty to this charge indicates that you have some remorse, it would seem that it has been an evolving situation in your case. It must be recognised that you were not remorseful or fully frank at the time that you were interviewed by police. Initially, you chose to deny any wrongdoing. Later, you opted to admit using the scissors but claim that it was an accidental infliction of injury for which the victim was to blame.

34    You have the continuing support of your immediate family who all reside in this country.

35    Your age and prospects of rehabilitation are very relevant to my sentencing task.

36    You were quite young when you committed this offence and even now, at 23, you are still a relatively young man.

37    As best I can judge on the available information, I consider your prospects of rehabilitation to be reasonable.

…

Objective gravity of the offence

…

40    As a type of offence, recklessly causing serious injury is inherently serious. So much is clear from the elements of the offence and the relatively high maximum penalty fixed by Parliament, namely 15 years’ imprisonment.

41    Whilst, as your counsel submitted, this offending occurred somewhat opportunistically and without any significant planning or pre-meditation, it was not wholly spontaneous. Clearly, and in contrast to some other cases, the offending did not occur in immediate response to the victim’s alleged misbehaviour. You had believed for some months that the victim had made a crude and totally unwarranted request of your girlfriend.

42    In this case, there are a number of serious aspects to the offending.

43    It involved the repeated use of a sharp bladed weapon to cause life threatening injuries to a young and particularly vulnerable victim. He was very young, affected by alcohol and clearly outnumbered. At the time that you chose to stab him with those scissors, he had already been set upon and somewhat incapacitated by a number of other assailants. Your actions in stabbing him in the back as he was falling to the ground was vicious and cowardly. It was an extreme over-reaction to the somewhat aged slight that you believed he had occasioned your girlfriend. You were clearly incensed that he was not prepared to apologise and I consider it reasonable to conclude that you felt disrespected and ignored by him in front of your girlfriend and friends. I also believe that you wanted to teach him a lesson. In saying that, I am not suggesting that you wanted or intended to cause him serious injury with the scissors. Yours was a reckless not an intentional state of mind. However, in forcefully stabbing him in the back multiple times, you must have appreciated that there was a high degree of probability of causing him serious injury.

44    … In my view, this offence would almost certainly have had a significant adverse emotional and psychological impact on the victim. I am prepared to find, even in the absence of any victim impact statement, that he would have been traumatised by what occurred to him and that it will take a long time before he will be able to come to terms with, and get over, what you did to him.

45    Given all of those circumstances, I consider this to be a relatively serious example of this type of offence.

13    At paragraph 49 of his sentencing remarks, the sentencing judge stated that the “nature and gravity of this offending warrants an immediate term of imprisonment and a relatively substantial one at that”. At paragraph 51, the sentencing judge accepted a submission made by counsel for the appellant, that the appellant is “a candidate for meaningful rehabilitation given his relative youth, plea of guilty and limited criminal history” and proceeded to fix what he described as “a relatively disparate non-parole period by reference to the head sentence”.

14    While the appellant was in prison, he completed various vocational and rehabilitative courses, including a drug and alcohol program, and programs to address violence and manage stressors.

AAT decision

15    Ministerial Direction No. 99 set out principles and considerations with which delegates of the Minister and the AAT were required to comply in accordance with s 499A of the Act when making decisions about visas on character grounds under ss 501 or 501CA.

16    Section 8 of Direction No. 99 listed “primary considerations”, including: protection of the Australian community from criminal or other serious conduct; the strength, nature and duration of a person’s ties to Australia; the best interests of minor children in Australia; and the expectations of the Australian community. Section 9 of Direction No. 99 set out “other considerations”, including: legal consequences of the decision; extent of impediments if removed; and impact on victims. In complying with Direction No. 99 in the present case, the AAT dealt with the considerations set out in Direction No. 99 by using the structure of that direction.

17    Paragraph 8.5 of Direction No. 99 relevantly provided as follows under the subheading “Expectations of the Australian Community”:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

…

c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature …

…

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

18    The AAT agreed with the sentencing judge that the appellant’s criminal history was “troubling”, and found that the totality of his offending was “very serious”.

19    A report dated 24 January 2022 prepared by forensic psychologist Carla Ferrari (Ferrari report) was in evidence before the AAT. Ms Ferrari concluded that the appellant did not suffer from any mental health condition and did not display a violent attitude. She assessed the risk of future violent reoffending by the appellant as “low”. She stated that the appellant would benefit from continued drug and alcohol treatment once he was released into the community, and that the violence and drug and alcohol courses he had undertaken in prison further reduced his risk to the Australian community. In paragraph 93 of her report, Ms Ferrari stated that the appellant “would potentially benefit from engaging in psychological treatment to learn how to better manage stressors as he often experiences subclinical threshold symptoms of depression when faced with major life events” and that this would “also reduce the likelihood of reliance on substances to self-medicate negative emotions, therefore reducing his recidivism risks”.

20    In considering the appellant’s risk of re-offending, the AAT took into account the Ferrari report, including the opinion in the report that the appellant has some unmet rehabilitative needs. The AAT also took into account the rehabilitative assessment made by the sentencing judge and the appellant’s completion of several rehabilitative courses. The AAT accepted that the appellant was willing to engage in further rehabilitative programs if required. The AAT disagreed with a submission made on the appellant’s behalf that he is “no threat to the Australian community”, and found that the appellant represents a low risk of violent offending and a low-to-moderate risk of general offending.

21    In relation to the consideration “Expectations of the Australian Community” in Direction No. 99, the AAT stated that paragraph 8.5(4) of the direction deemed what those expectations are by reference to normative principles, and declined to consider community expectations in the context of the appellant’s particular circumstances. The AAT relied on FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [66], [75] to [76] (Charlesworth J) and [91] (Stewart J).

22    The AAT ultimately held that the considerations in favour of the appellant retaining his visa and remaining in Australia outweighed those against it. Accordingly, the AAT accepted that there was “another reason” under s 501CA(4)(b)(ii) of the Act to revoke the cancellation of the appellant’s visa.

Minister’s reasons

23    In paragraph 10 of his reasons, the Minister stated that he had “given consideration to information given by Mr LUONG in relation to the original request for revocation and information that was before the AAT [Attachments B to R]”.

24    The Minister then applied s 501BA of the Act to the facts of this case under four main headings: “Character Test”; “National Interest”; “Discretion”; and “Conclusion”.

25    Under the heading “Character Test”, the Minister explained why he had concluded that the appellant did not pass the character test. This conclusion is not in issue in the proceeding.

26    Under the heading “National Interest”, the Minister used the following subheadings: “Protection of the community”; “Expectations of the Australian community”; and “Conclusion on national interest considerations”. Under the heading “Discretion”, the Minister used the following subheadings: “Best interests of minor children”; “Ties to Australia”; “Legal consequences of the decision”; and “Impediments if removed to Vietnam”.

27    In his reasons, the Minister referred to and took into account various attachments, including: the AAT decision (Attachment A); submissions made by the appellant that were before the AAT; the sentencing judge’s remarks; the Ferrari report; statements made by the appellant and his relatives (Attachments C to I); and the appellant’s criminal history (Attachment S). At paragraphs 19 to 23 of his reasons, the Minister referred to the circumstances of the RCSI offence, the victim’s injuries and the sentencing judge’s remarks. At paragraph 21, the Minister referred to the appellant stabbing the victim in the back three times with a pair of scissors. At paragraph 23, the Minister referred to the sentencing judge’s observation that the medical evidence was to the effect that the victim would have died if his injuries had gone untreated and that the victim had been “set upon and somewhat incapacitated by a number of other assailants” at the time the appellant stabbed him.

28    For the purposes of this proceeding, the following paragraphs of the Minister’s reasons are of relevance:

NATIONAL INTEREST

14.    I then considered the question of whether cancellation of Mr LUONG’S visa is in the national interest, recognising that this question is separate and distinct from the question of whether or not Mr LUONG passes the character test.

15.    ‘National interest’ is not defined for the purposes of s 501BA of the Act. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.

16.    In Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 at [40], the High Court said that “What is in the national interest is largely a political question”. To the same effect, a number of Federal Court decisions hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction (provided that satisfaction is obtained reasonably).

17.    I consider that matters of national interest include, amongst other things, the protection of the community and the expectations of the Australian community.

Protection of the community

18.    In determining whether it is in the national interest to cancel Mr LUONG’s visa, I have considered the need to protect the Australian community. In doing so, I considered the seriousness of Mr LUONG’s criminal conduct having regard to the circumstances and nature of the conduct, the likelihood of him reoffending, and the risk that he poses to the Australian community if such a likelihood eventuated.

Seriousness of criminal conduct

…

24.    Crimes of a violent nature against children are viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed. Additionally, I find that [the appellant’s] offending [regarding the RCSI offence] is also serious on account of having been committed against a vulnerable member of the community.

25.    Although there was no victim impact statement, the sentencing judge was prepared to find that the victim 'would have been traumatised by what occurred to him and that it will take a long time before he will be able to come to terms with, and get over, what you did to him'. I agree with this assessment.

26.    I consider that the sentence Mr LUONG received is a further indication of the seriousness of the offending. Outcomes involving incarceration of the offender are the last resort in the sentencing hierarchy and I consider that the custodial sentence imposed in this case further reflects the very serious nature of this offending.

27.    Even though I accept that the circumstances associated with the offending may have involved the victim previously having made unwanted sexual advances upon Mr LUONG's girlfriend, this does not absolve the very serious nature of Mr LUONG's offending. I am deeply troubled by the severity of the injury suffered by the victim during the attack, which could very possibly have led to the child victim's death.

28.    I note that while Mr LUONG's other criminal offending are not on the same scale of seriousness, I find that they cumulatively and nonetheless reflect disregard for the law and various forms of harm inflicted upon the Australian community. I note that the Tribunal made a similar finding in this respect and I otherwise agree with the Tribunal's finding that Mr LUONG's offending is very serious Attachment A.

Risk to the Australian community

29.    Having regard to Mr LUONG’s offending history, as outlined above, I consider that any future offending of a similar nature or seriousness would have the potential to cause serious physical and psychological injury and also financial harm to members of the Australian community, noting the kinds of injury inflicted by his violent offending, as well as the nature of his theft-related offending.

30.    In assessing the likelihood of Mr LUONG reoffending in the future, I have considered available information as to matters that may have contributed to Mr LUONG’s past conduct, as well as indications of remorse and the extent of Mr LUONG’s rehabilitation.

(a) Factors contributing to past conduct

…

32.    I note that Mr LUONG has previously acknowledged having “anger management issues” Attachment N (Attachment B) and also as contained in Ms Ferrari’s report, that Mr LUONG ‘has struggled with drug and alcohol use to manage acute periods of stress, and depressive symptoms or anxiety in the context of major life events’ Attachment N (Attachment L).

…

34.     I accept that Mr LUONG experienced a difficult upbringing and that he has abused alcohol and drugs since a young age.

(b) Remorse and rehabilitation

35.    I acknowledge that following his violent offending, that Mr LUONG has made various attempts towards rehabilitation.

36.    While imprisoned, he completed the courses "Young Adults Readiness Program", "Know the Score Program" and "Moderate Intensity Violence Program" Attachment N (Attachment N).

37.    I accept the Tribunal's findings that there is no evidence Mr LUONG has been other than compliant in custodial settings, and that his 'first custodial setting has been shocking and salutary' Attachment A.

38.    However I also take into account Ms Ferrari’s finding that ‘Mr LUONG would potentially benefit from engaging in psychological treatment to learn how to better manage stressors … This will reduce the likelihood of reliance on substances to self-medicate negative emotions, therefore reducing his recidivism risks’ Attachment N (Attachment L).

39.    Before the Tribunal, Mr LUONG explained that when he had failed to answer bail and was non-compliant with the work conditions of his Community Corrects Order, that this was due to 'poor English, not understanding the scope of conditions imposed on him, a limited understanding of the law, and competing employment demands' Attachment A. Although the reasons provided may be genuine, I am concerned that these issues would continue to arise for Mr LUONG should similar situations occur in future.

…

41.    I acknowledge Ms Ferrari's finding that Mr LUONG has a low risk of further offending Attachment N (Attachment L), as well as the Tribunal's finding that Mr LUONG has a low risk of violent offending and low-to-moderate risk of generally offending Attachment A.

42.    I note that since being released into the community from immigration detention, Mr LUONG has not been convicted of any further offending and may have since undertaken further rehabilitative efforts. I also note that Mr LUONG expressed during his AAT proceedings that he would be willing to attend further drug and alcohol programs if required Attachment A.

Conclusion on risk to community

…

44.    I have found that the nature of Mr LUONG’s conduct is very serious, and if repeated, has the potential to cause devastating physical and psychological injury, as well as some degree of financial harm to members of the Australian community.

45.    On balance, I accept there to be a low, but not negligible likelihood that Mr LUONG will reoffend. However I find that the nature of the harm that could be caused (specifically, the potential death of a child) is so serious that any risk that it could be repeated is unacceptable. I have given this consideration significant weight in support of cancellation being in the national interest.

Expectations of the Australian community

46.    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

47.    Cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, I consider that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of Mr LUONG, those specified kinds of conduct include the commission of a serious violent crime a child [sic] (in which context serious crimes include crimes of a violent nature). Noting that Mr LUONG has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applies in this case.

48.    The Government’s view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

49.    I note that in his submissions before the Tribunal Attachment B, that Mr LUONG submitted:

the Australian community, fully informed of the circumstances would point in favour of revocation of the applicant's visa ... we respectfully submit that the weight for expectations of the Australian community to be cancel each other out [sic] and more consideration should be placed on other aspects for consideration.

50.    In my view, this consideration, as it relates to the national interest, is about what the Australian community expects as a norm, rather than how the community might weigh up the specific circumstances of an individual non-citizen. Nevertheless, I have considered Mr LUONG’s specific circumstances to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons.

51.    I note that the Tribunal similarly declined to consider Mr LUONG's particular circumstances in assessing the expectations of the Australian community Attachment A.

52.    To the extent that Mr LUONG also wishes to contest the contents of the expectations of the Australian community, I note that the consideration here is about the expectations of the Australian community as a whole, rather than any expectations that particular members of the community may have. While I accept that certain members of the community may expect Mr LUONG’s visa to not be cancelled, I am of the view that the broader Australian community’s general expectations about non-citizens apply in this case. I have attributed this consideration heavy weight towards a finding that it is in the national interest to cancel Mr LUONG’s visa.

Conclusion on national interest considerations

53.    In deciding whether I am satisfied that it is in the national interest to cancel Mr LUONG’s … visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

In the specific case of Mr LUONG, he has engaged in particularly serious offending upon a vulnerable member of the Australian community and I have also found that the expectations of the Australian community would be such that the Australian Government would not allow Mr LUONG to remain in Australia.

54.    Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr LUONG’s … visa is in the national interest.

DISCRETION

…

56.    In exercising my discretion, I have given due weight to the matters discussed above under National Interest, but will rely on that discussion rather than repeat it here. In addition, I have taken into account the following considerations.

Best interests of minor children

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69.    I find that it is in the best interests of [the appellant’s half-sister] and [the appellant’s nephew] that I do not cancel Mr LUONG’s visa. I have given this substantial weight against cancellation.

Ties to Australia

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82.    I have considered the strength, nature and duration of Mr LUONG’s ties to Australia and find that on balance, they weigh against cancellation of his visa.

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Impediments if removed to Vietnam

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87.    … I … accept that Mr LUONG’s rehabilitative effects would be more effective in Australia than in Vietnam.

…

94.    I consider that Mr LUONG will face difficulties if removed to Vietnam, particularly relating to his financial situation and the past trauma of his father’s death. I find that the extent of impediments Mr LUONG would face if removed to Vietnam, weigh moderately against cancellation of his visa.

CONCLUSION

…

98.    I have weighed up the above countervailing factors against the national interest considerations. In doing so, I considered the overall very serious nature of the crimes committed by Mr LUONG, notwithstanding his demonstrated efforts towards rehabilitation.

99.    Mr LUONG has committed serious crimes, including that of Recklessly cause serious injury against a vulnerable member of the Australia community. Non-citizens such as Mr LUONG who have a criminal history of such offences should not generally expect to be permitted to remain in Australia.

100.    I find that the Australian community could be exposed to significant harm should Mr LUONG reoffend in a similar fashion. I could not rule out the possibility of further criminal serious conduct by Mr LUONG and the Australian community should not tolerate any risk of further harm.

101.    Noting that Mr LUONG has lived in Australia from a relatively young age, I have taken into account that the Australian community may afford a higher level of tolerance of criminal or other serious conduct by Mr LUONG than it would otherwise. However I am also cognisant that where great harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient to warrant not cancelling the visa.

102.    In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens. I am of the view that the Australian community generally would expect non-citizens who have committed violent crimes against children not to continue to hold a visa.

103.    I find that while there are clearly considerations in favour of not cancelling Mr LUONG's visa, they are overall outweighed by the considerations in favour of cancelling the visa.

29    Paragraph 104 of the Minister’s reasons sets out the Minister’s decision to exercise his discretion to set aside the AAT’s decision and cancel the appellant’s visa under s 501BA of the Act.

Relevant legal principles

30    As it is common ground that the appellant does not pass the character test, the issues on the appeal are whether the Minister erred in being satisfied that the cancellation of the appellant’s visa was in the national interest and that he should exercise his discretion to cancel the visa.

31    The concept of the “national interest” in s 501BA(2)(b) of the Act is broad and evaluative: Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [43] (Derrington and Hespe JJ); Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192 at [50] (Kyrou and Needham JJ).

32    The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest for the purposes of s 501BA of the Act. What is in the national interest does not readily lend itself to the compartmentalisation of the considerations involved, and it would be contrary to principle for the words “in the national interest” to be given a confined meaning. It is not the role of the courts to substitute their view of what is in the national interest for the view of the Minister or to second-guess the evaluation made by the Minister. See Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [331] (Kirby J) and [381] (Callinan J); Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270 at [20] (Mortimer J) and [149] (Thomas J).

33    The Minister has broad decisional freedom to determine whether cancellation of a visa is in the national interest. That question is largely a political one. See Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 278 CLR 75 at [11] (Kiefel CJ, Gageler and Jagot JJ) and [93] (Gordon, Edelman, Steward and Gleeson JJ); Palmer at [43]; Po’oi at [51] (Kyrou and Needham JJ). The Minister “may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister’s continuance in office”: Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231 at [18] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ), citing Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [50] (Gaudron, Gummow and Hayne JJ).

34    Under s 501BA of the Act, the Minister must be satisfied, separately, that a non-citizen does not pass the character test and that it is in the national interest that their visa be cancelled. Although the two issues are separate and must be considered severally, the matters which result in a non-citizen not passing the character test may also be taken into account by the Minister in deciding whether it is in the national interest for their visa to be cancelled. However, the matters which result in the non-citizen not passing the character test cannot automatically be treated as sufficient on their own for the Minister to be satisfied that it is in the national interest to cancel the non-citizen’s visa. Much will depend on the nature, circumstances and seriousness of those matters and any additional matters the Minister takes into account. See Patterson at [78] to [80] (Gaudron J); Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 at [86] to [87] (French, O’Loughlin and Whitlam JJ; Tereva at [85] (Thomas J).

35    Under ss 501(6)(a) and 7(c) of the Act, a sentence for a term of imprisonment of 12 months or more for the commission by a non-citizen of an offence is a basis on which the Minister may conclude that a non-citizen does not pass the character test. Whether the commission of that offence is a sufficient basis for the Minister to be satisfied that it is in the national interest to cancel the non-citizen’s visa will depend on all the circumstances of the case. Those circumstances may include: the nature and seriousness of the offence and the circumstances in which it was committed; the impact on any victim; the sentence imposed for the offence; and the risk of the non-citizen re-offending. See Patterson at [79] and [80] (Gaudron J); Tereva at [85] (Thomas J).

36    As the Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest for the purposes of s 501BA of the Act, no factor constitutes a mandatory relevant consideration such that failure to take it into account may result in jurisdictional error in accordance with the principles in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 to 43 (Mason J); Po’oi at [52] (Kyrou and Needham JJ). Accordingly, the Minister can decide which factors to take into account in making that determination in a particular case, including political considerations. See Plaintiff S297/2013 at [18] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [158] (Griffiths, White and Bromwich JJ); Palmer at [44] and [54] (Derrington and Hespe JJ); Po’oi at [52] (Kyrou and Needham JJ).

37    Although the Minister’s power to determine the national interest is broad, it is not unfettered or unbounded, and is subject to conventional judicial review principles: Graham at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Po’oi at [53] (Kyrou and Needham JJ).

38    Section 501BA of the Act does not specify any mandatory relevant considerations to which the Minister must have regard in forming a view about the national interest or in deciding whether to exercise the discretion in that section. It is up to the Minister to decide which matters to take into account, the extent to which the Minister considers them and the weight, if any, to be given to them. See Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ); Palmer at [123] (Derrington and Hespe JJ); Po’oi at [54] (Kyrou and Needham JJ).

39    Although the making of a decision by the AAT (or a delegate of the Minister) to revoke a decision to cancel a non-citizen’s visa is a precondition in relation to the Minister’s power under s 501BA of the Act, the exercise of that power does not involve an appeal from the decision of the AAT (or the delegate). Accordingly, the Minister does not need to find any error on the part of the AAT (or the delegate). It follows that the Minister is not legally required to consider the reasons of the AAT (or the delegate) – let alone “rebut” the AAT’s reasons – or any particular material that was before the AAT (or the delegate), and that failure to consider those reasons or any such material could not, without more, go to jurisdiction. However, as with other material, the Minister may decide to take into account the reasons of the AAT (or the delegate) or material that was before the AAT (or the delegate). See Vargas at [62] (McKerracher, Markovic and SC Derrington JJ); Tereva at [28] (Mortimer J); CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [32] (Owens J); Po’oi at [54] (Kyrou and Needham JJ).

40    The Minister must consider the merits of a particular non-citizen’s case before deciding whether to cancel their visa under s 501BA of the Act. In Carrascalao at [46], the Full Court (Griffiths, White and Bromwich JJ) stated that the ordinary meaning of the word “consider” in a judicial review context – where the relevant statutory provision does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise a power under that provision – “requires the Minister to engage in an ‘active intellectual process’ in assessing the merits of a case when contemplating the possible exercise of [that] power”. See also Po’oi at [58] (Kyrou and Needham JJ). In the present case, the appellant did not contend that the Minister had failed to engage in an active intellectual process in relation to any matter relevant to the appellant, over and above the submissions he made in support of his specific grounds of appeal.

41    Because s 501BA(3) of the Act expressly excludes the rules of natural justice, legal unreasonableness cannot be invoked as a ground of review in a manner that seeks indirectly to confer an entitlement to procedural fairness: Palmer at [115] to [119] (Derrington and Hespe JJ).

42    A decision of the Minister under s 501BA of the Act will be invalid if it is legally unreasonable in the sense discussed by the plurality (Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76], namely, that the impugned decision lacks “an evident and intelligible justification”: Po’oi at [64] (Kyrou and Needham JJ). Accordingly, the Minister’s formation of a state of satisfaction as to the national interest under s 501BA(3) must be reached reasonably: Madafferi at [89] (French, O’Loughlin and Whitlam JJ); Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at [140] (Besanko J, with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed).

43    Other expressions used to describe legal unreasonableness include that the impugned decision is arbitrary, capricious, illogical, irrational or perverse: Po’oi at [64] (Kyrou and Needham JJ). However, it must be borne in mind that legal unreasonableness “is inherently sensitive to context [and] cannot be reduced to a formulary”: Po’oi at [4] (Snaden J, citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [59] (Gageler J)).

44    Legal unreasonableness may be established in relation to a decision of the Minister under s 501BA of the Act either because the outcome of the exercise of the power in that section is unreasonable or the reasoning that led to that outcome is unreasonable: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81] (Mortimer CJ).

45    A decision of the Minister under s 501BA of the Act can be found to be legally unreasonable even though no particular error in the reasoning can be identified. In such a case, the question is whether the result of the decision is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the power in s 501BA in the circumstances of the particular case: Palmer at [159] (Feutrill J). This may be established if the decision falls outside a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Li at [105] (Gageler J); SZVFW at [82] (Nettle and Gordon JJ).

46    Another instance of legal unreasonableness is where the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case but then fails to consider that matter either at all or misconstrues or misunderstands it to such an extent as to amount to a constructive failure to consider it: Po’oi at [65] (Kyrou and Needham JJ), citing Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Robertson J).

47    The fact that s 501BA(3) of the Act excludes the rules of natural justice has the consequence that the Minister is not legally bound to seek further information from the non-citizen or take into account any unsolicited information they provide unless the Minister chooses to do so: Palmer at [123] (Derrington and Hespe JJ). The relative decisional freedom of the Minister as to what might be considered in determining what is in the national interest means that any failure of the Minister to consider material which was presumptively relevant to the decision cannot, without more, go to jurisdiction: Palmer at [123]. Section 501BA contemplates that the Minister may decide to cancel a non-citizen’s visa without up to date information where the Minister elects not to afford natural justice to the non-citizen: EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492 at [37] (Abraham, O’Sullivan and Raper JJ).

48    However, consistent with the principle set out at [46] above, legal unreasonableness may arise where there is adverse reliance by the Minister on out of date information on a matter as a proper basis for cancelling a non-citizen’s visa without giving the non-citizen an opportunity to provide up to date information on that matter.

49    Legal unreasonableness may involve some consideration of proportionality: Li at [30] (French CJ) and [73] to [74] (Hayne, Kiefel and Bell JJ). However, caution is required in seeking to apply proportionality principles derived from other areas of the law, such as sentencing of offenders and the constitutional legality of legislation, to the statutory context within which the Minister exercises the power in s 501BA of the Act. This caution was articulated as follows by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] (Griffiths J agreeing at [87], Wigney J agreeing at [90]):

[T]he need for [an objective] assessment [of reasonableness] … does not carry with it the authority for the Court to reach its own view of what is reasonable or not, or what is necessary, and then, without more, to supplant the view of the Minister. It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion.

50    Although the Minister’s reasoning for exercising the power in s 501BA of the Act can be found to be unreasonable, it would be rare for the Court to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power: SZVFW at [84] (Nettle and Gordon JJ).

51    The test for legal unreasonableness is stringent and, therefore, a conclusion that the exercise of a power is unreasonable is not to be reached lightly: SZVFW at [11] (Kiefel CJ), [52] (Gageler J) and [135] (Edelman J).

Primary judge’s reasons

52    The grounds of judicial review that the appellant pursued at trial are set out at [4] above. The primary judge rejected each of those grounds. In doing so, she succinctly summarised the applicable legal principles in a manner that is broadly consistent with our summary, above.

53    In relation to ground 1, the primary judge concluded that the Minister did not err in his understanding and application of the legal principles relating to the national interest. In particular, the primary judge held that:

(a)    the safety of the community is a rational consideration in determining the national interest, and it was logical and rational for the Minister to give significant weight to the protection of the Australian community in assessing whether he was satisfied that it was in the national interest for the appellant’s visa to be cancelled having regard to the nature and seriousness of his conduct (J [27]);

(b)    the expectations of the Australian community were likewise a rational consideration in determining the “national interest”, and the Minister did not err in taking this into account in forming his state of satisfaction in relation to the national interest (J [28]);

(c)    the Minister considered the AAT’s reasoning and findings and turned his mind to the considerations which the AAT took into account, but formed a different view of the facts and circumstances when examined through the lens of the “national interest” (J [30]); and

(d)    many of the matters raised by the appellant were in the nature of disagreement with the discretion exercised by the Minister and went to the merits of the Minister’s decision rather than its legality (J [31]).

54    In relation to ground 2(a), the primary judge noted that the only fact that the appellant pointed to in support of a contention that the failure to afford an opportunity to be heard amounted to legal unreasonableness was the fact that he had been living freely in the community for 13 months since the AAT’s decision. She also noted that, in paragraph 42 of his reasons, the Minister took into account the fact that, since being released into the community following the AAT’s decision, the appellant had not been convicted of any further offending and may have since made further rehabilitative efforts. She inferred that the Minister considered that he had sufficient probative material to support the findings he was inclined to make in relation to the national interest and that, in all the circumstances, the Minister did not act outside the bounds of reasonableness in not seeking further submissions from the appellant (J [36], [37]).

55    In relation to ground 3, the primary judge stated that the Minister’s reasons revealed an evident and intelligible justification for the outcome, and found that the Minister’s conclusion could not be described “as an exercise of power that was outside of the scope of the broad power conferred on him and therefore legally unreasonable” (J [44]).

The appeal

56    The appellant’s grounds of appeal have already been set out at [6] above. We will discuss grounds 1 and 2 together before considering ground 3.

Grounds 1 and 2: National interest

Parties’ submissions on grounds 1 and 2

57    The appellant’s submissions in support of grounds 1 and 2 were confusing and, at times, failed to maintain the distinction between judicial review and merits review.

58    As we understand them, the appellant’s submissions appear to rely on the following eight propositions.

59    First proposition. The Minister does not have a general absolute discretion to determine the scope of the expression “national interest” in s 501BA(2)(b) of the Act based on purely subjective or political considerations. That discretion is subject to constraints imposed by the courts, including the principle of legal unreasonableness. The Minister’s decision regarding the national interest “must be proportionate in a national interest sense”. The national interest cannot be what the Minister says it is. Ultimately, it is for the courts to define the scope of the expression “national interest”.

60    In support of the first proposition, the appellant relied on the statement of Besanko J in CWY20 at [167] that the power of the Minister to determine what is or is not in the public interest “has boundaries and it is the responsibility of the Court to identify those boundaries when called upon to do so”.

61    Second proposition. The fact that a person does not pass the character test by virtue of the commission of an offence that results in a sentence for a term of imprisonment of 12 months or more is relevant to a consideration of the national interest. However, that fact, in and of itself, cannot satisfy the national interest requirement in s 501BA(2)(b) of the Act. Something more is required.

62    In support of the second proposition, the appellant relied on the decision of Gaudron J in Patterson, including the following observations at [78] to [80] (citations omitted):

The terms of s 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test. That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the Minister’s satisfaction that it is in the national interest that that person’s visa be cancelled. It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community (see s 501(6)(d)(iv)).

Moreover, the crimes or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa. Crimes which involve circumventing passport and immigration laws may well be crimes of that kind. Further, crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled.

To say that the conduct which leads a person to fail the character test may also provide the foundation for the Minister’s satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned.

63    Third proposition. In order for the Minister to be satisfied that it is in the national interest to cancel a non-citizen’s visa on the basis of particular conduct, that conduct must have a national element. A national element can exist if a non-citizen’s conduct extends beyond the geographical confines of a particular area or has widescale effects.

64    In support of the third proposition, the appellant relied on:

(a)    The following definition of “national” in the Oxford Dictionary: “relating to a characteristic of a nation; common to a whole nation”.

(b)    The statement of Tamberlin J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 at [34] that “[t]he expression ‘national’ also directs attention to the interests of Australia as a whole as distinct from local or regional interests within Australia.”

(c)    The second reading speech for the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 on 2 December 1998, in which the then Minister for Immigration and Multicultural Affairs (Mr Ruddock) referred to “emergency cases involving non-citizens who may be a significant threat to the community”. See Second Reading Speech, 2 December 1998, Minister for Immigration and Multicultural Affairs, at 1231.

(d)    The second reading speech for the Migration Amendment (Character and General Visa Cancellation) Act 2014 on 24 September 2014, in which the then Minister for Immigration and Border Protection (Mr Morrison) stated that where “a real and immediate risk is posed by a noncitizen, the government can act quickly and decisively to remove that person from the Australian community before that risk can be realised”. See Second Reading Speech, 24 September 2014, Minister for Immigration and Border Protection, at 3.

65    In paragraph 27 of his written submissions, the appellant stated the following:

A non-exhaustive and not interconnected list of ‘national interest’ matters would need to include some or all of these factors:

(a)    An offence of kind which related to the nation as a whole either as part of a pervasive spate offences or as something that needed the extra regulatory feature of deportation;

(b)    The crime having some effect well beyond the geographical confines of where it occurred or where a relevant person lived;

(c)    A particularly serious crime having implications nationally (like the Lindt café terrorist offence);

(d)    Generally, it would be the type of criminal activity which would be dealt with by a Supreme Court;

(e)    Drug trafficking beyond the retail level;

(f)    Serious repeat offending;

(g)    Participation in organised crime; or something like bikie gangs

(h)    Something ought to exist which caused the Minister to doubt the correctness of the AAT decision, beyond mere disagreement with the decision;

(i)    The reason for the minister’s intervention would be for reasons outside local law enforcement.

(j)    A very serious particularly heinous offence.

(k)    Some very prevalent criminal activity affecting our society beyond a particular geographical area;

(l)    International obligations;

(m)    Serious objective political considerations.

(All errors are in the original.)

66    Fourth proposition. The appellant’s offending did not have a national element and therefore the Minister impermissibly set the national interest bar “too low” in being satisfied that cancellation of the appellant’s visa was in the national interest. Although the appellant’s offending was serious, the sentence of 3 years’ imprisonment indicates that the offending was at the lower end of the spectrum of seriousness and it is “at the Victoria Police level”. The offending was reckless rather than intentional and was committed by the appellant in a moment of reckless rage when he was 20 years old. It was unplanned and in response to the victim’s previous offensive behaviour towards the appellant’s then girlfriend and the victim’s refusal to apologise to her. It is unlikely that similar circumstances will arise in the future that result in similar offending. Also, at 16 years of age, the victim is more appropriately described as a juvenile or a young man rather than a child. The appellant’s offending: involved a pair of scissors rather than a knife; was “purely local”; did not involve an organised gang; and was “small fry in the whole scheme of criminality in Australia”.

67    Fifth proposition. The appellant does not challenge the Minister’s acceptance in paragraph 45 of his reasons that the risk of the appellant re-offending was low. However, the Minister’s statement in that paragraph that “any risk” of re-offending is unacceptable where serious harm could be caused by the re-offending, misconceived the national interest. That is because the statement imposed a test that was impossible for the appellant to meet, as it is not possible for anyone who has previously committed an offence to be assessed as being at zero risk of re-offending. The Minister’s approach is therefore irrational.

68    Sixth proposition. The manner in which the Minister discussed the appellant’s rehabilitation had the effect of making it material to the Minister’s decision. Consequently, even though the Minister was not obliged to afford the appellant procedural fairness and may not have had a duty to inquire, he acted unreasonably by not obtaining up to date information about the status of the appellant’s rehabilitation. The Minister failed to discharge this duty and reached a conclusion on the national interest without knowing whether, in the 13 months between the AAT’s decision and the cancellation of the appellant’s visa, he had progressed in his rehabilitation to such an extent that the risk of his re-offending was below negligible or zero.

69    Seventh proposition. The appellant accepts that the Minister’s decision under s 501BA of the Act does not involve an appeal from a decision of the AAT and thus the Minister does not need to find error in that decision in order to set it aside. However, in the present case, the Minister’s decision was legally unreasonable because the AAT’s decision was “reasoned and thorough”, and the Minister’s reasons did not identify any “factor creating reason to doubt the correctness of the [AAT’s] decision”.

70    Eighth proposition. In paragraph 50 of his reasons, the Minister erred by treating himself bound by Direction No. 99 when he is not bound by it, and thereby precluded himself from taking into account the appellant’s personal circumstances in assessing the expectations of the Australian community.

71    The Minister submitted that: the Minister’s consideration of the national interest for the purposes of s 501BA of the Act was consistent with the applicable authorities; there was no support in the case law for the appellant’s contentions as to the scope of the national interest; the Minister’s reasons do not contain any of the errors contended by the appellant; and the Minister’s conclusions in relation to the national interest and how the discretion in s 501BA should be exercised in the present case were not legally unreasonable.

Decision on grounds 1 and 2

72    In our opinion, grounds 1 and 2 are without any merit and should be rejected. The Minister did not misunderstand or misapply the national interest requirement in s 501BA(2)(b) of the Act or otherwise fall into jurisdictional error, and the primary judge did not err in finding that the Minister did not do so.

73    The appellant’s first proposition. As our summary of the legal principles at [31] to [51] above demonstrates, the Minister’s power to determine that cancellation of a non-citizen’s visa is in the national interest is not unfettered. It is subject to conventional judicial review principles, including those relating to legal unreasonableness. However, as noted at [32] above, the role of the courts is not to usurp the Minister’s function of determining the scope of the national interest for the purposes of s 501BA(2)(b) of the Act or to second guess the Minister’s decision in relation to the national interest in a particular case. To the extent that the appellant’s first proposition suggests otherwise, it is not supported by the observations of Besanko J at [167] in CWY20 (on which the appellant relied) or any other authority, and cannot be accepted. Besanko J’s observations regarding the responsibility of the Court to identify the boundaries of the Minister’s power were made in the context of his discussion of legal unreasonableness.

74    The role of proportionality in assessing whether a decision of the Minister is legally unreasonable will be discussed under ground 3.

75    The appellant’s second proposition. The appellant’s contention that the fact that a person does not pass the character test by virtue of the commission of an offence that results in a sentence of at least 12 months’ imprisonment cannot in and of itself satisfy the national interest requirement in s 501BA(2)(b) of the Act, and that something more is required, is too broadly expressed to be accepted. It is inconsistent with the legal principles summarised at [31] to [51] above.

76    Gaudron J’s observations in Patterson do not support the breadth of the appellant’s second proposition. Properly understood, what her Honour said was that the conduct that results in a non-citizen not passing the character test cannot automatically be treated as being sufficient to satisfy the Minister that it is in the national interest for the non-citizen’s visa to be cancelled. As her Honour stated, much will depend on the circumstances of the case, including the nature and seriousness of the non-citizen’s conduct.

77    The appellant’s third proposition. There is some support in the observations of Kirby J in Patterson for the contention that the national interest requires an emergency, a significant threat or other circumstances involving the nation as a whole. In that case, the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs cancelled the visa of a non-citizen under s 501(3) of the Act on the basis of his conviction and sentence for sexual offences. At [332], Kirby J stated that the power in s 501(3) was not enlivened because there was no “emergency” and the particular case of the non-citizen could not “be regarded as involving a significant threat to the nation as a whole or the community of the nation”. (Emphasis in original.) There is also some support in the observations in Tamberlin J in Wong set out at [64] above. However, the observations of Kirby J and Tamberlin J have not found support in subsequent cases. In Madafferi at [88] to [89], French, O’Loughlin and Whitlam JJ stated that “the bar of national interest does not seem to be set” as high as Kirby J’s observations suggested.

78    The second reading speeches on which the appellant relied cannot be used to read into s 501BA(2)(b) of the Act limitations which are not reflected in the words of the section.

79    The appellant has not cited any authority for his “non-exhaustive and not interconnected list of ‘national interest matters’” in paragraph 27 of his written submissions. This is not surprising, as the list is poorly expressed and, more importantly, runs counter to well-established case law, as summarised at [31] to [38] above. Adoption of the appellant’s list cannot be seriously entertained by this Court, as doing so would impermissibly re-write s 501BA(2)(b) of the Act.

80    The appellant’s fourth proposition. To the extent that the appellant’s fourth proposition is dependent on the Court accepting the appellant’s formulation of the national interest in his third proposition, our rejection of the third proposition means that the fourth proposition lacks a sound legal foundation. To the extent that the fourth proposition raises matters that do not depend on acceptance by the Court of the third proposition, it must be rejected for the following reasons.

81    The manner in which the appellant has framed the fourth proposition is directed more to the merits of the Minister’s decision than its legality. Also, the matters on which the appellant relies in support of the fourth proposition tend to minimise the serious nature and consequences of the appellant’s offending. This is exemplified by the suggestions of counsel for the appellant that the appellant’s offending was “at the Victoria Police level” and “small fry in the whole scheme of criminality in Australia” (see [66] above).

82    In accordance with the principles set out at [31] to [51] above, it was reasonably open to the Minister to conclude that cancellation of the appellant’s visa was in the national interest in light of the matters on which the Minister relied, including the following:

(a)    The Minister found that the appellant’s RCSI offence was serious, and noted that the seriousness of the offence is indicated by the sentence imposed by the sentencing judge (see paragraphs 24, 26, 44 and 47 of the Minister’s reasons set out at [28] above). We note that, on the appeal, the appellant accepted that his offending was serious.

(b)    The fact that the victim of the RCSI offence would have died if his injuries were left untreated (see paragraph 23 of the Minister’s reasons referred to at [27] above and paragraphs 27 and 45 of the Minister’s reasons set out at [28] above).

(c)    The use of a pair of scissors as a weapon in the commission of the RCSI offence (see paragraph 21 of the Minister’s reasons referred to at [27] above).

(d)    The fact that the victim of the RCSI offence was a child and vulnerable at the time he was stabbed three times by the appellant (see paragraphs 24, 27, 45, 47, 53 and 99 of the Minister’s reasons set out at [28] above). On the appeal, the appellant’s alternative description of the victim as a “juvenile” or “young man” does not alter the fact that the appellant was an adult and the victim was not an adult, with an age difference of four years between them.

(e)    The appellant stabbed the victim of the RCSI offence at a time when he had been incapacitated by other individuals (see paragraph 23 of the Minister’s reasons referred to at [27] above).

(f)    The appellant has previously acknowledged having “anger management issues” (see paragraph 32 of the Minister’s reasons set out at [28] above).

(g)    The sentence of 3 years’ imprisonment that the sentencing judge imposed for the RCSI offence (see paragraph 26 of the Minister’s reasons set out at [28] above). On the appeal, the appellant described his offending as at the lower end of the spectrum of seriousness. The Minister did not use this description. We note that the sentencing judge described the sentence he imposed as “relatively substantial” (see [13] above).

(h)    There was a low but not negligible risk that the appellant may re-offend (see paragraph 45 of the Minister’s reasons set out at [28] above).

(i)    The nature of the appellant’s offending, if repeated, has the potential to cause devastating physical and psychological injury, as well as some degree of financial harm, to members of the Australian community (see paragraph 44 of the Minister’s reasons set out at [28] above).

(j)    The expectation of the Australian community that individuals who commit serious violent offences against a child should have their visas cancelled (see paragraph 47 of the Minister’s reasons set out at [28] above).

83    In all the circumstances, the Minister did not set the national interest bar “too low” or in any way misconstrue or misapply the national interest requirement in s 501BA(2)(b) of the Act. It was reasonably open to him to determine that, due to the seriousness of the appellant’s offending, the risk of harm to the Australian community if he were to re-offend was unacceptable and that cancellation of his visa was in the national interest. As pointed out by Allsop CJ in Stretton (at [22]), the fact that it was unlikely that the specific circumstances that gave rise to the offending would arise in the future is not an obstacle to the Minister determining that cancellation of a non-citizen’s visa was in the national interest. We also note that no jurisdictional error was found in Tereva even though Bromwich J (at [41]) described the risk that the non-citizen in that case posed to the Australian community was “miniscule”.

84    The appellant’s fifth proposition. We reject the appellant’s contention that, in paragraph 45 of his reasons, the Minister imposed a test that was impossible for the appellant to meet. Read fairly and in context, paragraph 45 contains two propositions. First, there is a low but not negligible likelihood that the appellant will re-offend. Secondly, the nature of the harm that could be caused by the appellant re-offending (namely, the potential death of a child) is so serious that the risk of the appellant re-offending is unacceptable. As the appellant did not dispute the Minister’s assessment that the risk of the appellant re-offending was low, there is nothing irrational or unreasonable in the Minister’s statement.

85    In paragraph 45 of his reasons, the Minister did not stipulate that the appellant had to show that there was no risk of him re-offending in order for the Minister to determine that the risk of re-offending was acceptable. It is therefore not necessary for us to express an opinion on whether it would have been irrational or unreasonable for the Minister to express such a stipulation.

86    The appellant’s sixth proposition. We will discuss this proposition under ground 3, below.

87    The appellant’s seventh proposition. The appellant’s seventh proposition is contrary to the legal principles set out at [39] above and must be rejected.

88    The appellant’s eighth proposition. This proposition must be considered in the context of Direction No. 99. As is apparent from [17] above, paragraph 8.5 of Direction No. 99 states that the consideration of “Expectations of the Australian Community” refers to the expectations of the Australian community in general as a norm rather than specifically in relation to the circumstances of any non-citizen. The AAT applied that consideration in this manner, as it was obliged to do. The AAT correctly relied on FYBR in this regard. The Minister was not bound by Direction No. 99 but chose to apply the consideration “Expectations of the Australian Community” in the manner set out in paragraph 8.5 of that direction. As the Minister had broad decisional freedom in determining the national interest, he did not fall into jurisdictional error by doing so.

89    Although the manner in which the Minister applied the consideration “Expectations of the Australian Community” resulted in the Minister not taking into account the appellant’s personal circumstances for the purposes of that consideration, as is evident from paragraph 50 of the Minister’s reasons set out at [28] above, the Minister considered the appellant’s “specific circumstances to the extent relevant to [the Minister’s] consideration of the matters discussed in other parts of [the Minister’s] reasons”. It follows that the Minister considered the merits of the appellant’s case in reaching his decision under s 501BA of the Act.

Ground 3: Proportionality and legal unreasonableness

Parties’ submissions on ground 3

90    The appellant submitted that proportionality “is a strand of unreasonableness”. He relied on judicial statements regarding proportionality in different statutory contexts in support of the proposition that a decision of the Minister which is disproportionate in the circumstances of a particular case can be vitiated on the basis of jurisdictional error. Those cases included Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 (Mason CJ, Brennan, Dawson and Toohey JJ) (sentencing of offenders) and Brett Cattle Company Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2020] FCA 732; (2020) 274 FCR 337 at [295] to [296] (Rares J) (validity of delegated legislation prohibiting the export of livestock).

91    The appellant particularly relied on the following observations of French CJ in Li at [30]:

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.

(Citations omitted.)

92    The appellant contended that the Minister’s decision in the present case was disproportionate for two reasons. The first reason was that the cancellation of the appellant’s visa was tantamount to using a sledgehammer to crack a nut. The second reason was that the Minister raised issues associated with the appellant’s rehabilitation in the context of the risk of the appellant re-offending which were material to the Minister’s decision without taking steps to obtain up to date information on those issues.

93    In support of the first reason, the appellant essentially repeated the matters on which he relied for the fourth proposition discussed earlier in support of grounds 1 and 2.

94    In support of the second reason, the appellant expanded on the submissions he made in relation to the sixth proposition discussed earlier under grounds 1 and 2. The appellant contended that, as the Minister “was considering a conclusion that the [appellant] was too great a risk to be allowed to remain in Australia, it was clearly material to ascertain what the [appellant] had done during his time, free in the community for 13 months”.

95    The appellant argued that, in paragraphs 38 and 39 of his reasons, the Minister referred to the potential benefits for the appellant of psychological treatment to learn how to better manage stressors, and his poor English and limited understanding of the law, as relevant to his prior offending and risk of future re-offending. According to the appellant, as the Minister raised these issues, it was incumbent on him to make inquiries – such as inviting the appellant to make submissions – to enable the Minister to base any decision on the risk of re-offending on the most recent and accurate information available. The appellant submitted that the Minister’s failure to make inquiries and obtain up to date information on whether the risk of re-offending was below “low” or entirely eliminated was “an element of disproportionate decision making and was indeed unreasonable”.

96    The appellant relied on Peko-Wallsend at 44 (Mason J), GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 (Bennett J) and Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [90] to [96] (Neskovcin J).

97    The Minister submitted that: the appellant’s contentions regarding proportionality based on judicial decisions made in other statutory contexts should not be accepted; the Minister was not under a duty to obtain up to date information; the Minister gave the appellant the benefit of the doubt regarding steps taken by him to promote his rehabilitation; and the Minister’s decision to cancel the appellant’s visa was not legally unreasonable.

Decision on ground 3

98    The first reason for the appellant’s contention that the Minister’s decision was disproportionate. In discussing the appellant’s fourth proposition in support of grounds 1 and 2, we found that it was reasonably open to the Minister to conclude that cancellation of the appellant’s visa was in the national interest in light of the matters on which the Minister relied. Those matters are summarised at [82] above. Applying the legal principles summarised at [49] above in relation to the role of proportionality in assessing legal unreasonableness, we are of the view that there is no proper basis for concluding that the Minister’s reasoning was tantamount to using a sledgehammer to crack a nut.

99    The second reason for the appellant’s contention that the Minister’s decision was disproportionate. Here, we will deal with the appellant’s submissions in support of the appellant’s sixth proposition under grounds 1 and 2 and the second reason for his contention that the Minister’s decision was disproportionate.

100    The following features of s 501BA of the Act and the legal principles summarised at [31] to [51] above are particularly relevant to the appellant’s submissions:

(a)    Section 501BA(3) expressly excludes the rules of natural justice.

(b)    Although the Minister’s exercise of the power in s 501BA will be vitiated if it is legally unreasonable, the principles relating to legal unreasonableness cannot be applied in a manner that indirectly seeks to impose an obligation on the Minister to comply with the rules of natural justice (see [41] above).

(c)    In exercising the power in s 501BA, the Minister is not under a general duty to make inquiries of a non-citizen or to obtain up to date information. Accordingly, the Minister’s failure to make enquiries or obtain up to date information will not ordinarily, without more, establish legal unreasonableness (see [47] above).

(d)    The circumstances in which a failure by the Minister to make inquiries or obtain up to date information may establish legal unreasonableness are limited and are fact specific. Some examples are set out at [46] and [48] above.

101    We reject the appellant’s contention that the Minister treated the matters to which he referred in paragraphs 38 and 39 of his reasons – which broadly dealt with rehabilitation – as material considerations in making his decision to cancel the appellant’s visa. The Minister discussed rehabilitation as one of many factors he took into account in making his decision. However, even if it is assumed in the appellant’s favour that the Minister relied on rehabilitation in the manner contended by the appellant, the Minister did not thereby come under a duty to inquire or obtain up to date information on the status of the appellant’s rehabilitation. That is because the Minister did not treat rehabilitation as a matter that was adverse to the appellant’s case but rather considered it in a manner that was favourable to the appellant by noting that he had not been convicted of any further offences while he was in the community, and that he may have undertaken further rehabilitative efforts during that period. (See paragraph 42 of the Minister’s reasons set out as [28] above.) The Minister also:

(a)    stated that, in assessing the likelihood of the appellant re-offending in the future, he took into account “indications of remorse and the extent of Mr LUONG’s rehabilitation” (see paragraph 30 of the Minister’s reasons set out at [28] above);

(b)    accepted that the appellant was “compliant in custodial settings” (see paragraph 37 of the Minister’s reasons set out at [28] above);

(c)    stated that the appellant’s rehabilitative efforts would be more effective in Australia than in Vietnam (see paragraph 87 of the Minister’s reasons set out at [28] above); and

(d)    referred to the appellant’s “demonstrated efforts towards rehabilitation” (see paragraph 98 of the Minister’s reasons set out at [28] above).

102    We reject the appellant’s contention that the failure of the Minister to make inquiries of the appellant regarding his rehabilitation had deprived him of the opportunity of demonstrating that his rehabilitation had progressed to such an extent that the risk of his re-offending was below negligible or zero. This contention is inconsistent with the appellant’s submissions in support of his fifth proposition that the Minister imposed a test that was impossible for the appellant to meet because it is not possible for anyone who had previously committed an offence to be assessed as being at zero risk of re-offending. The contention is also inconsistent with the fact that the appellant eschewed any challenge to the Minister’s assessment that the risk of the appellant re-offending was low. In any event, as we have already stated, the Minister proceeded in a manner that was favourable to the appellant with regard to his rehabilitation during the period that he was in the community.

103    The appellant’s reliance on Mason J’s observations in Peko-Wallsend is misplaced. Those observations were made in the context of mandatory relevant considerations. Section 501BA of the Act does not set out any mandatory relevant considerations in addition to the requirements set out in s 501BA(1) and (2).

104    The cases of GRCF and Ba on which the appellant relied do not assist him. That is because those cases may be seen, in substance, as examples of the application of the principle set out at [48] above. See GRCF at [20], [26] to [36] and [51] to [54] (Bennett J) and Ba at [43] and [95] to [96] (Neskovcin J). The present case does not engage that principle. We also note that, in GRCF at [20], the Minister conceded that one aspect of his reasons was “irrational or illogical”.

105    It follows from the above discussion that the Minister’s decision to cancel the appellant’s visa was not legally unreasonable on the basis of proportionality or any other basis, and no error in the primary judge’s reasoning in relation to this matter has been established.

Disposition

106    For the above reasons, the appeal will be dismissed. Neither party submitted that costs should not follow the event. Accordingly, the appellant should pay the Minister’s costs.

Associate:

Dated: 11 February 2026