Federal Court of Australia

Chukwuma v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 121

ORDERS

THE COURT ORDERS THAT:

1. The appellant’s informal application for leave to amend his notice of appeal be dismissed.

2. The appellant’s interlocutory application dated 3 July 2026 (for the Court to receive further evidence on appeal) be dismissed.

3. The appeal be allowed.

4. The orders made by the primary judge on 27 October 2025 be set aside and in lieu thereof it be ordered that:

(a) A writ of certiorari issue quashing the decision of the respondent dated 17 December 2024 (to set aside a decision of the Administrative Appeals Tribunal and to cancel the Class BB Subclass 155 Resident Return visa held by the applicant).

(b) The respondent pay the applicant’s costs of the proceeding at first instance, to be determined on a lump sum basis.

(c) Within 21 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the applicant’s costs.

(d) In the absence of any agreement:

(i) within a further 14 days, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(ii) within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(iii) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

5. Within 7 days, each party file and serve a written submission (of no more than two pages) in relation to the costs of the appeal (including the interlocutory applications referred to in paragraphs 1 and 2 above).

6. Subject to further order, the issue of the costs of the appeal be determined on the papers.

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

REASONS FOR JUDGMENT

MOSHINSKY AND DOWLING JJ:

Introduction

1 The issue raised by this appeal is whether the respondent, the Assistant Minister for Citizenship and Multicultural Affairs (the Assistant Minister), fell into jurisdictional error in exercising the power in s 501BA of the Migration Act 1958 (Cth) (set out below).

2 In brief outline, the chronology of key background events is as follows:

(a) On 16 November 2017, the appellant’s (Mr Chukwuma) Class BB Subclass 155 Resident Return visa (Resident Return Visa) was mandatorily cancelled by a delegate of the Minister for Immigration and Border Protection under s 501(3A) of the Migration Act.

(b) Mr Chukwuma subsequently made a request for revocation of that cancellation decision.

(c) On 30 May 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs made a decision under s 501CA of the Migration Act not to revoke the cancellation decision.

(d) Mr Chukwuma applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s non-revocation decision.

(e) On 19 August 2022, the Tribunal set aside the delegate’s non-revocation decision and substituted it with a decision to revoke the mandatory cancellation of Mr Chukwuma’s visa (the Tribunal Decision) and gave reasons for its decision (the Tribunal’s Reasons).  As a consequence of that decision, Mr Chukwuma’s Resident Return Visa was reinstated.

(f) On 5 December 2024, the Migration Amendment Act 2024 (Cth) (the 2024 Amendment Act) came into force.  This introduced into the Migration Act provisions to facilitate Australia entering into “third country reception arrangements” and the removal of certain persons to a third country which had entered into such an arrangement.

(g) On 17 December 2024, approximately 2 years and 4 months after the Tribunal Decision, the Assistant Minister made a decision, purportedly pursuant to s 501BA, to set aside the Tribunal Decision and to cancel Mr Chukwuma’s Resident Return Visa (the Decision).  The Assistant Minister provided a statement of reasons for making the Decision (the Assistant Minister’s Reasons).

3 By the proceeding at first instance, Mr Chukwuma sought judicial review of the Decision.  On 27 October 2025, the primary judge made orders dismissing the application for judicial review and published reasons for judgment: Chukwuma v Minister for Immigration and Multicultural Affairs [2025] FCA 1302 (J).

4 On 24 November 2025, Mr Chukwuma filed a notice of appeal from the judgment of the primary judge.

5 In early December 2025, the Department of Home Affairs took steps to have Mr Chukwuma removed from Australia to the Republic of Nauru (since May 2026, named the Republic of Naoero) pursuant to a third country reception arrangement with that country.  (In these reasons, for consistency of expression, we will refer to the country as “Naoero” in relation to the period before, as well as after, May 2026.)  On 4 December 2025, Mr Chukwuma filed an application for an interlocutory injunction seeking to restrain his removal.  That application was resolved by the Assistant Minister giving an assurance to the Court (noted in orders made on 5 December 2025) not to remove Mr Chukwuma from Australia until the appeal is determined.

6 The notice of appeal contains three grounds.  Mr Chukwuma does not press ground 3.

7 Ground 1 in the notice of appeal raises a new point on appeal.  For the reasons set out later in these reasons, we refuse leave to raise this new ground on appeal.  Accordingly, this ground is not made out.

8 By ground 2 of his notice of appeal, Mr Chukwuma contends that the primary judge erred in failing to find that the Assistant Minister’s reasoning process in exercising the power to set aside the Tribunal Decision was unreasonable, irrational or involved an incorrect understanding of the effect of the legislative scheme.  In the particulars to this ground, Mr Chukwuma contends that:

(a) the primary judge erred in finding that the Assistant Minister did not have actual or constructive knowledge of the negotiations between the government of Australia and the government of Naoero intended to facilitate the removal of the cohort of persons affected by the judgment of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ) to Naoero; and

(b) the primary judge erred in failing to find that the Assistant Minister’s failure to have regard to the possibility that Mr Chukwuma could be removed to Naoero in the foreseeable future, and/or detained in the meantime, was unreasonable, irrational, or involved an incorrect understanding of the effect of the legislative scheme.

9 For the reasons that follow, we have concluded that ground 2 is made out.

Preliminary procedural matters

10 In the lead-up to the hearing of the appeal, Mr Chukwuma provided to the Assistant Minister and the Court a proposed amended notice of appeal, in which ground 1 was amended and ground 3 was deleted.  Original ground 2 remained unchanged.  The Assistant Minister opposed the amendments to ground 1 in the notice of appeal, on the basis that proposed new ground 1 would raise a new point on appeal.  At the hearing of the appeal, the parties made submissions about both: (a) whether leave to amend should be granted; and (b) whether, if leave were granted, proposed new ground 1 is made out.  We indicated that we would deal with the question of leave to amend and, if leave were granted, the substance of the ground in our reasons for judgment.

11 We will first set out ground 1 in the notice of appeal and then set out proposed new ground 1.  Ground 1 in the notice of appeal is as follows:

The primary judge erred in failing to find that the Assistant Minister’s decision breached the implied limitation on the power in s 501BA of the Migration Act 1958 (the Act) that the power must be exercised within a reasonable time after the original decision was made by the Tribunal.

Particulars

(a)    On 19 August 2022, the (then) Administrative Appeals Tribunal set aside the delegate’s decision and substituted it with a decision to revoke the cancellation of the appellant’s visa.

(b)    On 17 December 2024, the Assistant Minister for Citizenship and Multicultural Affairs made a decision under s 501BA(2) of the Act to set aside the Tribunal decision and cancel the appellant’s Resident Return (subclass 155) visa.

(c)    The Assistant Minister’s purported exercise of the power in s 501BA of the Act two years and four months after the Tribunal’s decision was made breached the implied limit that the power be exercised within a reasonable time.

12 Proposed new ground 1 is as follows (without mark up):

The primary judge erred in failing to find that the Assistant Minister’s decision lacked a rational basis or was unreasonable by relying on information that was 2 years and 4 months out of date and proceeding as if there had been no change to critical matters in the intervening period.

Particulars

(a)    On 19 August 2022, the (then) Administrative Appeals Tribunal set aside the delegate’s decision and substituted it with a decision to revoke the cancellation of the appellant’s visa.

(b)    On 17 December 2024, the Assistant Minister for Citizenship and Multicultural Affairs made a decision under s 501BA(2) of the Act to set aside the Tribunal decision and cancel the appellant’s Resident Return (subclass 155) visa.

(c)    The Assistant Minister purported to consider the best interests of minor children and the impact of the decision on the appellant’s family unit, on the assumption that there had been no change to the family unit in the intervening two years and four months.

(d)    The reliance on significantly outdated information about an inherently variable matter which the Assistant Minister identified as significant to his decision was unreasonable and the resulting conclusions on the relevant matters lacked a rational basis.

(e)    At the time of the Assistant Minister’s decision, the appellant’s partner was heavily pregnant and their daughter was born one month after the Assistant Minister’s decision.

13 The Assistant Minister submits that both original ground 1 and proposed new ground 1 seek to raise contentions not advanced at trial that could possibly have been met by evidence below: see Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 at [35].  In oral submissions, the Assistant Minister submitted that, had either of these grounds been raised below, the Assistant Minister could have put on evidence, for example, about whether there was any reason not to go back to Mr Chukwuma to seek more up-to-date information (which would have been relevant to the question whether it was legally unreasonable for the Assistant Minister to proceed as he did).

14 We are satisfied that, had either original ground 1 or proposed new ground 1 been raised at first instance, the Assistant Minister could have put on evidence along the lines indicated in the preceding paragraph.  Therefore, this is a case where, had the point been raised at first instance, it could possibly have been met by evidence.  Further, no satisfactory explanation has been provided as to why original ground 1 or proposed new ground 1 were not raised at first instance.  For these reasons, leave to amend the notice of appeal will be refused.  Further, leave to rely on original ground 1 is refused.

15 Mr Chukwuma has filed an interlocutory application dated 3 July 2026 seeking an order that the Court receive further evidence on appeal (see r 36.57 of the Federal Court Rules 2011), namely an affidavit of Bethany Rose affirmed 4 December 2025.  The material sought to be relied on is directed to two matters.  First, the material establishes the birth of Mr Chukwuma’s daughter in January 2025.  Second, the material shows that, as noted above, in early December 2025, the Department of Home Affairs took steps to have Mr Chukwuma removed to Naoero pursuant to a third country reception arrangement with that country.  At the hearing of the appeal, the parties made submissions on both: (a) whether the further evidence should be received; and (b) if the evidence were received, the effect of the evidence for the purposes of the appeal grounds.  We indicated that we would deal with these matters in our reasons for judgment.

16 In our view, the further evidence should not be received.  In light of our conclusions above, the only live ground is ground 2.  The two matters to which the material is directed are events which occurred after the Decision was made (on 17 December 2024).  It is not apparent how the material is relevant to the question whether the Decision is affected by jurisdictional error (or whether the primary judge erred in not so finding) as alleged in ground 2.  Accordingly, the application for the Court to receive further evidence on appeal will be dismissed.

Key relevant legislative provisions

Provisions relating to cancellation of the visa

17 Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of certain provisions; and (b) the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

18 Section 501CA deals with revocation of a decision to cancel a visa under s 501(3A).  Section 501CA(3) provides that the Minister must invite the person whose visa has been cancelled to make representations about revocation of the cancellation decision.  Section 501CA(4) provides that the Minister may revoke a cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test; or that “there is another reason why the original decision [i.e. the cancellation decision] should be revoked”.

19 Section 501BA, being the power directly in issue in the present case, provides:

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 ART;

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

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

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

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

Minister’s exercise of power

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

Decision not reviewable by application under Part 5

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

Note: For notification of decisions under subsection (2), see section 501G.

Provisions relating to third country reception arrangements

20 The 2024 Amendment Act, which came into force on 5 December 2024, introduced ss 76AAA and 198AHB into the Migration Act.  Section 76AAA provides in part as follows:

76AAA Cessation of certain bridging visas—holder has permission to enter and remain in another country

(1)    This section applies in relation to a non-citizen if:

(a)    the non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and

(b)    the non-citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and

(c)    the foreign country is a party to a third country reception arrangement (within the meaning of section 198AHB) that is in force; and

(d)    none of the following apply:

(i)    the non-citizen has made a valid application for a protection visa that has not been finally determined;

(ii)    the non-citizen could not be removed to the foreign country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen;

(iii)    the non-citizen is a child under 18.

(2)    The Minister must give the non-citizen notice that this section applies in relation to the non-citizen.

(3)    The notice:

(a)    must be given as soon as reasonably practicable after this section starts to apply in relation to the non-citizen; and

(b)    may be given orally or in writing.

(4)    Despite any other provision of this Act or the regulations, the visa ceases to be in effect immediately after:

(a)    if the notice is given by a method specified in section 494B—the non-citizen is taken to have received the notice; or

(b)    otherwise—the non-citizen receives the notice.

Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

Note 2: The visa period for the visa ends when it ceases to be in effect under this subsection.

(5)    The rules of natural justice do not apply to the giving of a notice under subsection (2).

(6)    For the purposes of paragraph (1)(b), a permission to enter the foreign country may be unconditional or a permission to enter that is subject to the non-citizen doing one or more things required by the foreign country that the non-citizen is capable of doing before entering the country.

…

(Emphasis added.)

21 In broad terms, s 198AHB operates if the Commonwealth of Australia enters into an arrangement (referred to as a “third country reception arrangement”) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country, and confers a power to take or cause to be taken any action in relation to the arrangement.  As enacted, s 198AHB provided:

198AHB Power to take action etc. in relation to third country reception arrangement

(1)    This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

(2)    The Commonwealth may do all or any of the following:

(a)    take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(b)    make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(c)    do anything else that is incidental or conducive to the taking of such action or the making of such payments.

(3)    To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(4)    Nothing in this section limits:

(a)    any other power or duty under this Act; or

(b)    the executive power of the Commonwealth.

(5)    In this section:

action includes action in a foreign country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.

Background facts

22 Mr Chukwuma was born in Liberia in 1987 and is a Liberian citizen.  Following a traumatic childhood, he escaped Liberia when he was about 15 years of age.  He arrived in Australia in 2005 when he was 17 years of age.

23 On 1 September 2005, a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs made a finding (pursuant to s 36 of the Migration Act) that Australia’s protection obligations were engaged in respect of Mr Chukwuma (then under a different name) with respect to Liberia (see the Tribunal’s Reasons at para 21 and the Assistant Minister’s Reasons at paras 106-107).

24 In 2006, Mr Chukwuma commenced a relationship with his partner.

25 In 2007, Mr Chukwuma began offending.

26 In 2011, Mr Chukwuma was convicted of drug offences and sentenced to 5 years and 3 months imprisonment.  He was also convicted of failing to comply with a bail agreement and sentenced to 9 months imprisonment.  Details of these matters are set out at paras 18-20 of the Assistant Minister’s Reasons.

27 On 17 April 2013, Mr Chukwuma was given an official warning regarding the consequences of him reoffending.

28 On 8 April 2014, Mr Chukwuma was granted the Resident Return Visa.

29 On 14 October 2016, Mr Chukwuma was convicted in the District Court of South Australia of “Possess commercial quantity of imported border controlled drugs or plants”, for which he was sentenced to 10 years, 6 months and 8 days imprisonment (which includes 1 year and 8 days of a previous sentence, as Mr Chukwuma was convicted while on parole).  Details of the offending are set out in paras 18 and 21 of the Assistant Minister’s Reasons.

30 On 16 November 2017, Mr Chukwuma’s Resident Return Visa was mandatorily cancelled by a delegate of the Minister for Immigration and Border Protection under s 501(3A) of the Migration Act.

31 Subsequently, Mr Chukwuma made a request for revocation of that cancellation decision.

32 On 30 May 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs made a decision under s 501CA not to revoke the cancellation decision.

33 Mr Chukwuma applied to the Tribunal for review of the delegate’s non-revocation decision.

34 On 9 August 2022, Mr Chukwuma was released on parole and taken into immigration detention.

35 On 10 and 11 August 2022, a hearing before the Tribunal took place.  Mr Chukwuma gave evidence by video-conference from hotel quarantine due to his exposure to COVID-19.  Mr Chukwuma’s partner and a counsellor also gave evidence.  Mr Chukwuma’s partner gave evidence, particularly in relation to the complexity of parenting her son with Mr Chukwuma (referred to as “Child A” in the Tribunal’s Reasons).  (We will also refer to this child as “Child A” in these reasons.)

36 On 19 August 2022, the Tribunal made the Tribunal Decision, by which it set aside the delegate’s non-revocation decision and substituted it with a decision to revoke the mandatory cancellation of Mr Chukwuma’s visa, and provided a statement of reasons.

37 The Tribunal’s Reasons involve a consideration of the matters set out in Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) (see para 70 of the Tribunal’s Reasons).  The Tribunal concluded (as summarised in paras 160-164) that:

(a) primary consideration 1 (protection of the Australian community from criminal or other serious conduct) weighed heavily against revocation of the cancellation decision;

(b) primary consideration 2 (whether the conduct engaged in constituted family violence) was neutral;

(c) primary consideration 3 (the best interests of minor children in Australia) weighed heavily in favour of revocation of the cancellation decision; and

(d) primary consideration 4 (expectations of the Australian community) weighed against revocation of the cancellation decision.

38 In its consideration of the “other considerations” referred to in Direction 90, the Tribunal had regard to the terms of s 197C(3) of the Migration Act and the fact that a protection finding had been made in respect of Mr Chukwuma.  The Tribunal stated (at para 136) that, if the Tribunal were to affirm the decision under review, Mr Chukwuma would be likely to remain in immigration detention with no chronologically fixed endpoint.  (We note that at the time of the Tribunal Decision, NZYQ had not yet been decided.)  The Tribunal found (at para 140) that Mr Chukwuma’s removal to Liberia was presently neither required nor authorised and that, in the absence of a voluntary request for removal, Mr Chukwuma “may face the prospect of being detained for an indeterminate period”.  The Tribunal considered this to be a factor that weighed heavily in favour of revocation of the cancellation decision (at para 141 of the Tribunal’s Reasons).

39 Having considered each of the “primary considerations” and “other considerations” referred to in Direction 90, the Tribunal concluded (at para 167) that there was “another reason” pursuant to s 501CA(4)(b) to revoke the cancellation decision.

40 As a consequence of the Tribunal Decision, Mr Chukwuma’s Resident Return Visa was reinstated.

41 On 5 December 2024, the 2024 Amendment Act came into force.

42 On 17 December 2024, the Assistant Minister made the Decision, that is, the decision to set aside the Tribunal Decision and to cancel Mr Chukwuma’s Resident Return Visa.

The Assistant Minister’s Reasons

43 In a section dealing with preliminary matters, the Assistant Minister set out the substance of s 501BA.  He noted (at para 9) that decisions under s 501BA are not subject to the rules of natural justice.  He stated that he was nonetheless aware that it was open to him to afford Mr Chukwuma an opportunity to be heard in respect of the possible exercise of power under s 501BA.  The Assistant Minister stated that he had elected not to afford Mr Chukwuma that opportunity.  It is apparent that the Assistant Minister proceeded on the basis of the material that had been before the Tribunal at the time of its decision (some 2 years and 4 months earlier).

44 At paras 11-12, the Assistant Minister concluded that Mr Chukwuma did not pass the character test (because of the operation of s 501(6)(a), on the basis of s 501(7)(c)) and therefore that the condition in s 501BA(2)(a) was satisfied.  There is no issue about this aspect of the Decision.

45 At paras 13-75, the Assistant Minister considered the national interest (being the consideration referred to in s 501BA(2)(b)).  This part of his reasons is structured under the following headings and sub-headings:

(a) Protection of the community;

(i) Seriousness of criminal conduct (paras 18-33);

(ii) Risk to the Australian community (paras 34-66);

(b) Expectations of the Australian community (paras 67-72); and

(c) Conclusion on National Interest considerations (paras 73-75).

46 The Assistant Minister concluded (at para 75) that use of the discretionary power to cancel Mr Chukwuma’s Resident Return Visa was in the national interest.

47 The Assistant Minister then considered the exercise of the discretion at paras 76-128.  This part of his reasons is structured under the following headings:

(a) Best interests of minor children (paras 78-90);

(b) Ties to Australia (paras 91-99);

(c) Legal consequences of the decision (paras 100-115);

(d) Impediments if removed to Liberia (paras 116-123); and

(e) Impact on Australian business interests (paras 124-128).

48 In the section dealing with the best interests of minor children, the Assistant Minister stated that he “treated the best interests of any affected minor children in Australia as a significant consideration” (para 78).  The Assistant Minister referred to Mr Chukwuma and his partner’s minor child, who was their only child at the time of the Decision.  As noted above, we are referring to this child as “Child A” in these reasons.  The Assistant Minister reasoned:

83.    Since the Tribunal’s decision, I accept that it is probable that Mr CHUKWUMA has since resumed a direct parental relationship with [Child A] (albeit still for a relatively limited period).

84.    I also accept that it is likely that Mr CHUKWUMA will play a positive parental role in [the] future in respect of [Child A], although the extent of this will ultimately be tested by Mr CHUKWUMA’s ability to refrain from further criminal offending.

85.    I note particularly that having Mr CHUKWUMA available in a parental role, will be of substantial assistance to [Child A’s] mother, [name redacted], who has previously indicated the difficulty of being a single mother to a boy with special needs … [Child A’s mother’s] mother ([name redacted]) has also previously stated that [Child A’s mother] would benefit from the emotional, physical and financial support of raising a child together with Mr CHUKWUMA … I find that these factors would in turn, have a generally positive effect on [Child A’s] life.

86.    I also note the evidence from [Child A’s] mother that [Child A] wishes for Mr CHUKWUMA to be home …

87.    I find that Mr CHUKWUMA has an ongoing parental relationship with [Child A].

88.    However, I note that the cancellation of Mr CHUKWUMA’s visa would not separate him from [Child A]. For the reasons which will be discussed below, Mr CHUKWUMA is presently not liable for immigration detention and accordingly a decision to cancel his visa will ultimately have limited impact upon [Child A].

89.    For example, I anticipate that without his present permanent visa, Mr CHUKWUMA may find it more difficult to obtain employment, which may in turn have a negative consequential effect upon [Child A].

90.    Therefore while I overall find that it is in the best interests of [Child A] that I do not cancel Mr CHUKWUMA’s visa, I give it overall moderate weight against cancellation.

(Emphasis added.)

49 Under the heading “Ties to Australia”, the Assistant Minister considered the length of time Mr Chukwuma had been in Australia and the impact of cancellation on his family in Australia.  The Assistant Minister noted that Mr Chukwuma’s partner and Child A were citizens, permanent residents or otherwise authorised to remain indefinitely in Australia.  After referring to submissions made by Mr Chukwuma to the Tribunal, the Assistant Minister reasoned at para 95:

95.    However, similarly for reasons I will explain below, I consider that a decision to cancel Mr CHUKWUMA’s visa will have a limited impact on these members of his immediate family, given it [i.e. cancellation of the visa] will not render him liable for immigration detention nor is there a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.

50 The Assistant Minister concluded (at para 99) that this factor (ties to Australia, including the impact on family members) weighed moderately against visa cancellation in this case.

51 In the section headed “Legal consequences of the decision”, the Assistant Minister noted (at paras 106-107) that a protection finding had been made for Mr Chukwuma in respect of Liberia.  The Assistant Minister then reasoned:

108.    Having regard to the assessment completed by the Department, I accept that Mr CHUKWUMA is a person in respect of whom Australia has non-refoulement obligations. I further accept that the existence of such obligations weighs against cancellation, while also noting that the finding means that Mr CHUKWUMA will not be removed to Liberia, so the feared harm will not occur in the foreseeable future and thus does not carry weight in itself.

109.    In accordance with s197C(3) of the Act, the protection finding made for Mr CHUKWUMA means that the removal of Mr CHUKWUMA to Liberia is neither required nor authorised by s198. In this regard, I have noted that the exceptions under s197C(3)(c) do not currently apply to Mr CHUKWUMA. As such, I find that a decision to refuse Mr CHUKWUMA’s visa will not result in his removal in breach of Australia’s non-refoulement obligations.

110.    The legal effect of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, the non-citizen, if in immigration detention, must be released.

111.    Since the protection finding made for Mr CHUKWUMA means that if his removal to Liberia is not required or authorised, he could only be removed to a third country. As there is presently no real prospect of this, he would not be subject to indefinite detention pending his removal.

112.    I am aware that if a cancellation decision is made under s 501BA, Mr CHUKWUMA will not be taken into detention. He will continue to reside in the community as an unlawful non-citizen in the first instance. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.

113.    I am also aware that if a cancellation decision is made under s501BA, there would be significant restrictions on Mr CHUKWUMA’s ability to apply for another visa. Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to Mr CHUKWUMA as a result of a cancellation decision under s501BA. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than:

-    a protection visa, or

-    a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation.

114.    I have given this consideration significant weight against cancellation.

Although the Assistant Minister referred at [109] to a decision “to refuse” Mr Chukwuma’s visa, this was evidently a slip, and the Assistant Minister intended to refer to a decision “to cancel” Mr Chukwuma’s visa.

52 The Assistant Minister’s Reasons do not contain any reference to the provisions introduced by the 2024 Amendment Act; nor do the reasons contain any consideration of the potential for Mr Chukwuma to be removed to a third country pursuant to those provisions.

53 The Assistant Minister also considered (at paras 129-131) a submission that Mr Chukwuma had previously made that his removal would lead to increased costs for the Government and taxpayers in circumstances where Child A and Child A’s mother’s parents would be increasingly dependent on Child A’s mother herself, and she would be unable to continue as a carer for all three people.  The Assistant Minister stated (at para 131):

131.    As explained above, Mr CHUKWUMA is not liable for removal and accordingly I have given this claim no weight. However, I note that such costs, even if incurred, would be offset to some extent by the greater protection afforded to the Australia community in Mr CHUKWUMA’s absence, and is otherwise one which I acknowledge.

54 The Assistant Minister reiterated his conclusions on the various factors at paras 132-142.  He then concluded (at para 143) that the considerations against cancellation of the visa were outweighed by the serious national interest considerations in this case.  The Assistant Minister set aside the Tribunal’s Decision and cancelled Mr Chukwuma’s Resident Return Visa.

The primary judge’s reasons

55 At first instance, Mr Chukwuma contended that the Decision was affected by jurisdictional error on the basis of legal unreasonableness in the sense discussed by the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) (J[5]).  Mr Chukwuma contended that the Decision was affected by legal unreasonableness in four particulars (J[10]), which were referred to as particulars (a), (b), (c) and (d).

56 Particulars (a) and (b) can be put to one side, as her Honour’s rejection of those grounds is not the subject of appeal.

57 By particulars (c) and (d), Mr Chukwuma contended that the Assistant Minister acted unreasonably in the exercise of the power under s 501BA because he proceeded from an incorrect understanding of the provisions of the Migration Act as in force at the time that the Decision was made (when concluding that there was no real prospect of Mr Chukwuma being removed to a third country) (J[23]).  The primary judge noted that 12 days before the Decision, amendments effected by the 2024 Amendment Act came into force.  At J[24], her Honour set out the text of s 198AHB, which was introduced by the 2024 Amendment Act.  The primary judge summarised Mr Chukwuma’s submissions on this point at J[25]:

The applicant submitted that in concluding that there was no real prospect that he would be removed to [a] third country, the Assistant Minister made no reference at all to s 198AHB and the “legal framework” for which it provides. He submitted that if consideration had been given to s 198AHB, the Assistant Minister would have proceeded on a different factual foundation, namely that there was a real possibility of Australia entering into an arrangement with [Naoero] and hence a real prospect of the applicant being removed to [Naoero] in accordance with such an arrangement.

58 At J[26], the primary judge set out Mr Chukwuma’s submission that the likelihood of Australia entering into a third country reception arrangement with Naoero was supported by the facts found by Moshinsky J in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540; 314 FCR 555 (TCXM (FCA)).  Her Honour set out some of the findings made in that case (relating to negotiations between Australia and Naoero).  At J[27], her Honour noted that Moshinsky J concluded that the exchange of letters between Australia and Naoero constituted an “agreement or arrangement” (albeit an interim one) limited to three people, including the applicant in the case before him (at [50]).  Her Honour stated at J[28]:

In this matter, it is common ground that the applicant is not one of the three individuals included in the interim arrangement. Counsel for the Assistant Minister otherwise invited the Court to proceed on the same facts as found in TCXM [(FCA)], withdrawing an objection under s 91 of the Evidence Act 1995 (Cth).

As appears from the above passage, it became common ground between the parties at first instance that the primary judge could proceed on the basis of the findings of fact made in TCXM (FCA). This was confirmed by senior counsel for the Assistant Minister during the hearing of the appeal (T37-38).

59 As set out in J[29]-[31], Mr Chukwuma submitted to the primary judge that, on the TCXM (FCA) facts, it was not open to the Assistant Minister to conclude that there was no real prospect that it would be practicable to remove him to a third country in the reasonably foreseeable future. Alternatively, Mr Chukwuma submitted that it was not necessary to show that the Assistant Minister had actual or constructive knowledge of the TCXM (FCA) facts, because it was enough to show that the Assistant Minister had failed to have regard to the existence of the new framework established by s 198AHB. Accordingly, it was submitted, the Assistant Minister had acted unreasonably by failing to assess the legal consequences of his decision upon a proper understanding of the Migration Act, as amended.

60 The primary judge did not accept those submissions (J[32]).  Her Honour reasoned as follows:

33    In accordance with NZYQ, whether or not there was a real prospect that it might be practicable to remove the applicant to a third country in the reasonably foreseeable future was a question to be answered by reference to the facts as they existed at the time of the Assistant Minister’s decision and on the basis of the material then before him.

34    As at 17 December 2024, the objective facts went no further than the existence of discussions between the Minister for Home Affairs and the President of [Naoero]. Those discussions commenced in September 2024, before s 198AHB came into effect. The meetings between the Australian Minister for Home Affairs and the President of [Naoero] [on] 31 January [2025] had not occurred at all. The discussions and correspondence in any event related to an initial “cohort” of unlawful non-citizens and the applicant was not among them. The objective facts (as they existed on the decision date) did not support, let alone require, a finding that there was a real prospect of the applicant being removed from Australia to [Naoero] in the reasonably foreseeable future.

35    More fundamentally, the applicant has not demonstrated that the Assistant Minister had actual knowledge of the TCXM [(FCA)] facts at the time of his decision. To the extent that it was submitted that he had “constructive knowledge,” the applicant did not point to any authority that might support such a finding, nor was it explained how a finding of “constructive knowledge” could bear on the ground of legal unreasonableness as articulated on the originating application. I am not satisfied that a decision under s [501BA] could be affected by jurisdictional error by reason of a failure to have regard to facts not actually known to the decision-maker.

36    Nor do the Reasons otherwise reveal error as to the operation of the Act as it stood at the date of the Assistant Minister’s decision. The Assistant Minister correctly summarised the provisions mandating the detention and removal of unlawful non-citizens and the effect of s 197C(3) in its application to the applicant. In addition, he correctly identified that there was no legal impediment to the removal of a person in the applicant’s position to a third country and (again correctly) summarised the effect of the High Court’s decision in NZYQ.

37    In addition, I do not accept that s 198AHB established, for the first time, a legal framework under which the removal of unlawful non-citizens to third countries could be undertaken. The provision opens with the words “if the Commonwealth enters into an arrangement” (emphasis added) and is expressed to operate without derogating from Executive powers. One such power is the power of the Executive to engage in relations with other countries in its non-statutory prerogative capacity (as discussed by Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 (at [178])). On its terms, s 198AHB did not derogate from powers that already existed to enter into arrangements with third parties to affect such removals. Nothing in the Reasons suggests ignorance on the part of the Assistant Minister concerning the existence of that Executive power.

38    The Reasons may fairly be interpreted to mean that the Assistant Minister concluded, on the material then before him, that there was no real prospect of the applicant being removed to [Naoero] under such an arrangement in the reasonably foreseeable future. The conclusion complained of is an essentially factual one, unaffected by an error of the kind contended for.

61 The primary judge therefore dismissed the application for judicial review.

Consideration of ground 2

62 The principles relating to jurisdictional error have been stated by the High Court of Australia in several recent cases.  In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said:

2    Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …

3    Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

…

5    Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn – “[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute”.

(Footnotes omitted.)

63 The principles relating to the ground of unreasonableness were discussed in Li at [23]-[30] per French CJ, [63]-[76] per Hayne, Kiefel and Bell JJ, [88]-[92], [105]-[113] per Gageler J; SZVFW at [10]-[12] per Kiefel CJ, [51]-[60] per Gageler J, [80]-[89] per Nettle and Gordon JJ, [131]-[135] per Edelman J; and Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.

64 Judgments of the Full Court of this Court in the context of the Migration Act establish that a jurisdictional error may occur where a decision-maker fails to take into account the legal framework in which the decision is made, which includes the direct and immediate statutorily prescribed consequences of the decision in contemplation: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]-[9] per Allsop CJ and Katzmann J, [153] per Buchanan J; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] per Kenny, Flick and Griffiths JJ.

65 It is with the above principles in mind that we approach the question whether, in the present case, the Decision is affected by jurisdictional error.

66 The context of the Assistant Minister’s Reasons includes that Mr Chukwuma was the subject of a protection finding with respect to Liberia and therefore could not be returned to Liberia without his consent.  This was recognised by the Assistant Minister at para 111 of his reasons.

67 The difficulties with the Assistant Minister’s Reasons arise from the following facts and matters: first, in the months leading up to the Decision, Australia was taking active steps to establish an arrangement to send the cohort of persons affected by NZYQ to Naoero; secondly, shortly before the Decision was made, the Parliament passed the 2024 Amendment Act, which provided a legislative framework for entry into third country reception arrangements; thirdly, if Mr Chukwuma’s Resident Return visa were cancelled, it was almost inevitable that he would be issued with a Subclass 070 (Bridging (Removal Pending)) visa (BVR), which would align him with the NZYQ cohort and put him at risk of being removed from Australia under a third country reception arrangement; fourthly, the Assistant Minister did not refer to or take into account these matters in the Decision; fifthly, to the contrary, he proceeded on the basis that Mr Chukwuma would likely remain in Australia (and thus accorded less weight to considerations which were against cancellation of the Resident Return Visa).  We will now expand on each of these matters.

68 As noted above, it was common ground at first instance that the Court could proceed on the basis of the findings in TCXM (FCA).  Those findings include:

(a) Between September 2024 and January 2025, a number of meetings took place between representatives of Australia and Naoero at which they discussed potentially resettling the cohort of persons affected by the NZYQ decision in Naoero: TCXM (FCA) at [39].

(b) During the same period, there were written communications between the representatives of the two countries: TCXM (FCA) at [40].

At least some of those meetings and communications occurred in the period between September 2024 and 17 December 2024, the date when the Decision was made.  Given the significance of those matters for the administration of the immigration portfolio, we infer that the Assistant Minister was aware of (at least) the fact that those meetings and communications were taking place.  No contrary evidence was filed by the Assistant Minister despite Mr Chukwuma seeking to rely on those findings in the proceeding at first instance.

69 As part of its response to the NZYQ judgment, the Government introduced the Migration Amendment Bill 2024 (Cth).  The Bill was debated in Parliament during November 2024 and passed on 28 November 2024.  The 2024 Amendment Act received Royal Assent on 4 December 2024 and came into force on 5 December 2024.  The purposes of the 2024 Amendment Act included to facilitate Australia entering into “third country reception arrangements” so that persons in the NZYQ cohort could be removed from Australia and settled in a third country.  (This is apparent from the text of the provisions introduced by the 2024 Amendment Act.  It is confirmed by the Parliamentary debates: see Australia, House of Representatives, Debates, 20 November 2024 at 8223.)  It is important to note that the relevant provisions (in particular, s 76AAA) only operated in relation to persons who held a BVR (see [20] above).

70 The Assistant Minister stated at para 112 that he would separately consider what type of visa would be issued to Mr Chukwuma if his Resident Return Visa were cancelled.  There was no realistic possibility of the Assistant Minister issuing Mr Chukwuma with another substantive visa given the conclusions the Assistant Minister had reached on protection of the Australian community.  Given the statutory scheme and Mr Chukwuma’s circumstances (including the protection finding), it was almost inevitable that, if Mr Chukwuma’s Resident Return Visa were cancelled, he would be issued with a BVR.  We note that the legislative provisions relating to a BVR had been amended in November and December 2023 in response to the NZYQ judgment and reflected the language of the test stated in NZYQ: see YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 419 ALR 457 at [33]-[36] per Gageler CJ, Gordon, Gleeson and Jagot JJ, [193] per Steward J, [259] per Beech-Jones J.  Following those amendments, the prescribed definition of “eligible non-citizen” in reg 2.20 of the Migration Regulations 1994 (Cth) was expanded by the insertion of reg 2.20(18), which included in the definition of “eligible non-citizen” a non-citizen “if there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future”.  The Minister had power under reg 2.25AB to grant a BVR to such an eligible non-citizen if the Minister was satisfied that they did not hold a substantive visa, a criminal justice visa or an enforcement visa.  The facts set out in paras 110-111 of the Assistant Minister’s Reasons show that Mr Chukwuma would have been eligible for the grant of a BVR if his Resident Return Visa were cancelled.  There does not appear to be any suggestion that he could or would be granted any other type of visa.  It was thus almost inevitable that, if Mr Chukwuma’s Resident Return Visa were cancelled, he would be issued with a BVR.  (This is in fact what happened on 19 December 2024, 2 days after the Decision was made.)

71 If Mr Chukwuma were issued with a BVR, this would align him with the cohort of persons affected by the NZYQ judgment.  It would also put him at risk of removal from Australia (eg, to Naoero) under a third country reception arrangement, if such an arrangement were entered into.

72 Despite the detailed discussion of the “Legal consequences of the decision”, the Assistant Minister did not refer to or take into account any of the matters discussed in the preceding paragraphs.  At para 110 of his reasons, the Assistant Minister described the effect of the NZYQ judgment.  At para 111, the Assistant Minister stated to the effect that, since the protection finding made for Mr Chukwuma meant that his removal to Liberia was not required or authorised, “he could only be removed to a third country”.  The Assistant Minister then stated that, as there was presently no real prospect of this, he would not be subject to indefinite detention.  However, there was no mention of: the fact that Australia was taking steps to enter into an arrangement to send the NZYQ cohort to Naoero; the provisions introduced by the 2024 Amendment Act; or the fact that, if Mr Chukwuma’s Resident Return Visa were cancelled, he would almost inevitably be issued with a BVR, which would align him with the NZYQ cohort and put him at risk of being sent to a third country under a third country reception arrangement.

73 To the contrary, the Assistant Minister proceeded on the basis that Mr Chukwuma was likely to remain in Australia and relied on this in according less weight to considerations which tended against cancellation of Mr Chukwuma’s Resident Return Visa: see [48], [49] and [53] above.

74 In the Assistant Minister’s written submissions, he submits (at para 32) that, as at the time of the Decision, no third country reception arrangement was in place, and there is no evidence that such an arrangement concerning Mr Chukwuma was intended.  That may be accepted.  However, it remains the case that as at the time of the Decision, Australia was in discussions with Naoero about a third country reception arrangement with respect to the NZYQ cohort; and that, if Mr Chukwuma’s Resident Return Visa were cancelled, he would almost inevitably be issued with a BVR, which would align him with the NZYQ cohort, which the Government was seeking to send to Naoero.

75 Having regard to the facts and matters set out above, we consider that the Assistant Minister’s Reasons suffer from an error which can properly be characterised as jurisdictional.  The error can be described as a failure to take into account the legal consequences of the decision being contemplated or a failure to take into account the legal framework in which the decision was made.  Although the Assistant Minister said that he would separately consider what type of visa to issue to Mr Chukwuma (if his Resident Return Visa were cancelled), for the reasons given above, it was almost inevitable that he would be issued with a BVR.  In these circumstances, the issue of a BVR is properly treated as a direct and immediate statutory consequence of the Decision.  The issue of a BVR would mean that Mr Chukwuma was at risk of removal to a third country pursuant to a third country reception arrangement if such an arrangement were concluded.  This was not taken into account.  Further, the provisions introduced by the 2024 Amendment Act formed part of the legal framework in which the Decision was made.  Those provisions meant that, if issued with a BVR, Mr Chukwuma could be removed to a third country pursuant to a third country reception arrangement.  Those provisions were not taken into account.

76 Another way to describe the error is in terms of legal unreasonableness.  In circumstances where Australia was in discussions with Naoero about an arrangement to send the NZYQ cohort to Naoero, the Parliament had recently passed legislation to facilitate entry into third country reception arrangements, and the cancellation of Mr Chukwuma’s Resident Return Visa would almost inevitably lead to the issue of a BVR (which would place him at risk of removal under a third country reception arrangement), it was unreasonable (in the sense discussed by the High Court in the cases referred to at [63] above) to proceed on the basis that Mr Chukwuma would likely remain in Australia for the purposes of assessing factors that were relevant to whether or not to cancel the Resident Return Visa.

77 The primary judge stated at [35] of her reasons that Mr Chukwuma had not demonstrated that the Assistant Minister had actual knowledge of the TCXM (FCA) facts at the time of the Decision.  However, as set out at [68] above, we consider that it can be inferred that the Assistant Minister was aware of the facts set out in that paragraph.

78 The primary judge stated at [36] of her reasons that the Assistant Minister’s Reasons did not reveal error as to the operation of the Migration Act as it stood at the date of the Decision.  While that is true, we consider that the Assistant Minister’s Reasons were incomplete, in that they did not take into account the implications of the issue of a BVR (which was almost inevitable if Mr Chukwuma’s Resident Return Visa were cancelled) or the provisions introduced by the 2024 Amendment Act.

79 At [37] of her reasons, the primary judge stated that she did not accept that s 198AHB established, for the first time, a legal framework under which the removal of unlawful non-citizens to third countries could be undertaken.  In our opinion, this understates the effect of the provisions regarding third country reception arrangements introduced by the 2024 Amendment Act.  Those provisions went significantly beyond existing provisions in the Migration Act and also the non-statutory executive power discussed by the primary judge at [37] of her reasons.

80 Overall, in our respectful opinion, the primary judge did not have sufficient regard to the difficulties with the Assistant Minister’s Reasons discussed above.

81 For these reasons, ground 2 is made out.

Conclusion

82 It follows that the appeal is to be allowed.  The orders made by the primary judge on 27 October 2025 should be set aside and in lieu thereof it should be ordered that a writ of certiorari issue quashing the Decision and that the Assistant Minister pay Mr Chukwuma’s costs of the proceeding at first instance.

83 In relation to the costs of the appeal, these should follow the event.  However, it is also necessary to address the issue of the costs of the application for leave to amend and the application for the Court to receive further evidence on appeal.  We will therefore give the parties the opportunity to file written submissions on the costs of the appeal, and we will determine that issue on the papers.

Associate:

Dated:    8 September 2026

REASONS FOR JUDGMENT

DERRINGTON J:

84 I agree with the orders proposed by Moshinsky and Dowling JJ that the appeal be allowed and that the Assistant Minister’s decision be quashed.

85 The jurisdictional error which infected the Assistant Minister’s decision was his failure to take into account the true effect of applicable legislation when concluding that there was no real prospect that Mr Chukwuma would be removed to a third country.  In reaching that conclusion, the Assistant Minister necessarily relied upon what he understood to be the existing legal constraints on the government and the practical realities of securing an agreement with a State willing to accept Mr Chukwuma despite his serious criminal offending.

86 In relation to these considerations, it is apparent that the Assistant Minister erred in his assessment of the government’s legal ability to remove Mr Chukwuma by failing to address recent amendments to the Migration Act 1958 (Cth) which had come into force shortly prior to his decision.  In particular, the new ss 76AAA and 198AHB, which facilitated the government’s ability to remove non-citizens from Australia, were relevant to his determination.  He made no mention of these provisions in his decision and, given their importance to the conclusion in issue, it is reasonable to infer that they were not considered.  It follows that the Assistant Minister’s consideration of the topic identified as the “Legal consequences of the decision” proceeded on the basis of an erroneous understanding of the existing law, rather than with the knowledge that the new laws enhanced the government’s ability to remove certain non-citizens such as Mr Chukwuma.

87 Ordinarily, where the exercise of an administrative power involves the application of law, whether common law or legislation, the decision-maker is required to identify and apply the law correctly.  Although powers may be conferred on the executive in terms that their exercise is valid irrespective of any error of law, such an intention would generally need to be expressed in the clearest terms.  Nothing of the kind appears in the present case, and the necessary consequence of the Assistant Minister’s misunderstanding of the applicable law is that a jurisdictional error occurred:  LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, 326 [4].

88 The foregoing is sufficient to warrant the quashing of the Assistant Minister’s decision.  It follows that there is no need to address the question of whether any other error arose by reason of the Assistant Minister not taking into account the state of negotiations or communications between representatives of Australia and Naoero, nor the likelihood of Mr Chukwuma satisfying the criteria for removal if certain arrangements were put in place.  In particular, the question of whether an administrative decision may be unreasonable for failing to take into account relevant facts, of which the decision-maker may not have been aware, should be left for determination in a case in which those facts are clearly established.  There is, with great respect, a real danger of extending the concept of unreasonableness to circumstances which exist only because an inference is drawn, on the basis of several assumptions, that a decision-maker was aware of certain facts.  In this respect, it is important to recognise that, at the time of the Assistant Minister’s decision, the legal and political environment were each in a state of flux given the government’s legislative attempt to respond to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137.  Although, with the benefit of hindsight, it is possible to discern the sequence and interrelationship of the relevant events, it should not be assumed that the same perspective was available at the time of the decision.

89 It is appropriate, at this point, to invoke the undoubtedly accurate statement of Gageler J (as his Honour then was) that the test for unreasonableness is stringent and rarely satisfied:  Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 377 – 378 [113].  Despite that admonition as to the likely infrequency with which cases of genuine legal unreasonableness might arise, allegations of such an error are now advanced in nearly every case in which judicial review is sought.  As Gageler J’s observations imply, the scope of unreasonableness ought to be kept within its proper bounds.

90 Within the recognised taxonomy of jurisdictional error, the concept of unreasonableness has its recognised place alongside, or even overlapping with, other recognised jurisdictional errors.  That established taxonomy provides a useful construct in which to view and assess the enforceable limits of executive power; limits which can be applied with certainty, and which are understandable by those who make administrative decisions.  As in other areas of doctrinal law, the very nature of appropriate taxonomies furnishes the principles which determine whether a particular act comports with the required legal standard and, if it does not, the reasons why that is so.  In addition, the taxonomical divisions often provide or dictate the appropriate legal response on those occasions when the circumstances fall beyond accepted legal limits, and those responses may be diverse depending upon the category infringed, though less so in the current area of discourse.  Whilst it might be accepted that the categories of jurisdictional error are not closed and the limits of any particular jurisdictional error may fluctuate, it is appropriate that any enlargement of the number of categories or their boundaries occur in an incremental and iterative manner, whilst keeping steadily in mind the constitutional limitations of judicial power.

91 That aside, in the most unusual and peculiar circumstances of the present case, the Assistant Minister’s decision was affected by jurisdictional error by reason of his assessment of the effect of the then-current law without addressing the recently passed legislative changes.

Associate:

Dated:    8 September 2026