Federal Court of Australia

Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to rely on his written outlines of submissions dated 22 and 27 July 2026.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, who was born on 20 November 1986, is a citizen of the Solomon Islands. He arrived in Australia on 11 September 2001 but returned to the Solomon Islands after one year. He then returned to Australia in 2007 and has resided in Australia since that time. In December 2020, the appellant pleaded guilty to, and was convicted of, serious domestic violence offences against his former partner and sentenced to two years’ imprisonment, suspended after three months. The suspension was lifted after the appellant’s conviction for a contravention of a domestic violence protection order, for which he was sentenced to 12 months’ imprisonment to run concurrently with the two year sentence.

2    On 10 February 2021, the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). He exercised his statutory right to seek to have that cancellation revoked, but revocation was refused by a delegate of the Minister. He then sought merits review of that non-revocation decision in the Administrative Appeals Tribunal.

3    On 17 December 2021, the Tribunal affirmed the non-revocation decision.

4    On 24 June 2022, the appellant’s judicial review application of the Tribunal’s decision was dismissed: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730 (SC Derrington J). However, the Tribunal’s decision was quashed on appeal and the matter was remitted for redetermination: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116 (Logan, Rangiah and Goodman JJ).

5    On 12 December 2023, a differently constituted Tribunal reconsidered the appellant’s application for merits review and re-affirmed the non-revocation decision. However, on 22 April 2024, the Tribunal’s second decision was set aside and the matter was again remitted to the Tribunal: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 402 (Stewart J).

6    A differently constituted Tribunal heard the appellant’s matter and, on 18 September 2024, the Tribunal set aside the non-revocation decision (Tribunal’s Decision), thereby reinstating the appellant’s cancelled visa following which the appellant was released into the community.

7    On 16 December 2024, the Assistant Minister exercised the discretionary power under s 501BA(2) of the Migration Act to set aside the Tribunal’s Decision and cancel the appellant’s visa (Minister’s decision). For the purposes of the Migration Act, the Assistant Minister is the Minister: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [17] (Gleeson CJ). In these reasons, we will refer to the Assistant Minister as the Minister.

8    The appellant brought an application for judicial review of the Minister’s decision, which the primary judge dismissed: Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 (PJ). The appellant now seeks to appeal the primary judge’s orders.

9    The notice of appeal raised two grounds of appeal. First, the appellant contended that the primary judge erred in holding that the Minister’s findings regarding the appellant’s risk of reoffending were not irrational, illogical or legally unreasonable. Second, the appellant contended that the primary judge erred in holding that the Minister did not fail to take into account a mandatory relevant consideration, being the legal consequences of an adverse decision for the appellant.

10    The appellant, who was self-represented, produced two outlines of submissions. The Minister did not object to the Court considering the second outline of submissions, however, the Minister raised that the appellant sought to raise additional arguments that were not raised before the primary judge and required leave to do so. Although the Minister raised the requirement for leave to be granted, the Minister did not seek to be heard on the matter. At the commencement of the appeal, the Court granted the appellant leave to rely on the additional arguments and the appeal proceeded on the basis that the additional arguments formed part of the first ground of appeal.

11    For the reasons that follow, the grounds of appeal have no merit, and the appeal should be dismissed.

Relevant provisions of the Migration Act

12    Under s 501(3A) of the Migration Act, the Minister must cancel a visa granted to a non-citizen if the Minister relevantly is satisfied that the non-citizen does not pass the character test, because of the operation of s 501(6)(a), and 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. Sections 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. It was not in dispute that, at the time the appellant’s visa was cancelled on 10 February 2021, the appellant did not pass the character test because he was sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and 501(7)(c)) and he was serving a term of imprisonment on a full-time basis (s 501(3A)(b)).

13    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. At the relevant time, s 500(1)(ba) in effect provided that, if the Minister decides not to revoke the cancellation decision under s 501CA(4), the non-citizen could apply to the Tribunal for merits review of the non-revocation decision.

14    Until 14 October 2024, s 501BA(2) conferred power on the Minister to set aside a decision of the Tribunal to revoke the cancellation of a visa. On 14 October 2024, the Administrative Review Tribunal (ART) was established and the reference to the Tribunal was amended to refer to the ART. However, s 501BA continues to apply to decisions of the Tribunal by reason of the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) and Item 26 of Schedule 16 to that Act.

15    Section 501BA provides 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 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.

16    Under s 501BA(2), the Minister is required to form a state of mind about the national interest at the time that the power is exercised: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299; [2022] FCA 1209 at [45] and [48] (Charlesworth J). Once the Minister is satisfied that the cancellation is in the national interest, the Minister has a discretion and may set aside the original decision and cancel a visa that has been granted. The question of what is in the national interest is broad and evaluative, and is entrusted by the legislature to the Minister to determine according to the Minister’s satisfaction: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [89] (French, O’Loughlin and Whitlam JJ).

17    The Migration Act does not stipulate any factors to which the Minister must have regard when forming the requisite state of satisfaction as to whether the cancellation is in the national interest under s 501BA(2)(b) or in exercising the discretion under s 501BA(2): Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 at [44] (Derrington, Feutrill and Hespe JJ); Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at [61] (McKerracher, Markovic and SC Derrington JJ).

18    As subsection 501BA(3) makes clear, the rules of natural justice do not apply to a decision under s 501BA(2). As a result, the Minister is not obliged to provide the person with a further opportunity to be heard or to put on more up to date material: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12; [2019] FCAFC 89 at [22] and [23] (White, Perry and Charlesworth JJ). However, the more dated the material, the more problematic it may become to make factual findings about present day circumstances within the bounds of legal reasonableness. Much will depend on the inferences reasonably capable of being drawn about present day circumstances from the dated material: LJTZ at [48].

The Minister’s decision

19    The Minister was provided with a Submission from the Minister’s department with accompanying attachments, comprising a decision page for the Minister to sign to record the Minister’s decision, an index of relevant materials, the relevant materials and a draft statement of reasons (or R), which the Minister adopted.

20    The Minister’s reasons, at R [6]–[8], record that the Minister recognised that s 501BA of the Migration Act empowers the Minister (or delegate) to personally set aside a decision of the Tribunal that, in effect, reinstated a person’s visa, and to cancel the visa if satisfied that the person does not pass the character test and that it is, at the time of the decision, in the national interest to cancel the visa. The Minister expressly recognised that he had a discretion not to cancel the visa, even if he was satisfied of the matters regarding the character test and the national interest. The Minister was also aware that s 501BA was not subject to the rules of natural justice and he elected not to afford the appellant an opportunity to be heard, even though it was open to him to do so.

21    The Minister considered matters relevant to the “National Interest”, under two main subheadings, being, first, “Protection of the community”, and second, “Expectations of the Australian community”.

22    Under “Protection of the community”, the Minister considered the “Seriousness of [the] criminal conduct”, being offending involving “domestic violence offences against [the appellant’s] former partner, and the mother of his minor children, involving choking/suffocation/strangulation, assaults occasioning actual bodily harm and common assault”, finding that “the custodial sentences imposed in this case further reflect the very serious nature of the relevant offending”.

23    Next, in relation to the “Protection of the community”, the Minister considered the “Risk to the Australian community”. The Minister relevantly stated:

32.    Having regard to Mr MANEBONA's offending history, as outlined above, I consider that any future offending of a similar nature or seriousness would have the potential to cause very serious physical and/or psychological injury and/or financial harm to members of the Australian community, particularly having regard to his violent offending against his former partner, which involved grabbing the victim by her arms and shoulders, grabbing her by the throat and squeezing her neck until she was unable to breathe, and dragging the victim and throwing her to the ground, causing pain to her head. I note that the victim had bruising to her neck, head and back, abrasions to her side, and hand marks on her neck. I also note that Mr MANEBONA's minor children witnessed this family violence offending.

33.    In assessing the likelihood of Mr MANEBONA's reoffending in the future, I have considered available information as to matters that may have contributed to Mr MANEBONA's past conduct, as well as indications of remorse and the extent of Mr MANEBONA's rehabilitation, including his more recent conduct in immigration detention, where relevant information is available.

24    The Minister concluded on “risk to community” as follows (it should be noted that it was not in contention that the Minister’s reference to the “IHMS records” was an error and was intended to be a reference to the “Serco records”):

Conclusion on risk to community

40.    The safety of the Australian community is the highest priority of the Australian government, which is committed to protecting the community from harm resulting from criminal activity or other serious conduct by non-citizens.

41.    I have found that Mr MANEBONA's conduct is very serious and that such conduct has the potential to cause physical and/or psychological injury and/or financial harm to members of the Australian community.

42.    A number of factors, as outlined above, may have contributed to Mr MANEBONA's offending behaviour. I note that his previous substance abuse appears to have contributed to much of his criminal offending and note his assertions that he was in a toxic relationship with the victim of his family violence offending. However, I remain concerned that Mr MANEBONA will be unable to refrain from substance abuse, particularly noting the IHMS records regarding his continued use of alcohol while in immigration detention and notwithstanding his engagement with rehabilitative programs and courses. I have found that, on balance, there remains an ongoing, albeit somewhat reduced, likelihood that Mr MANEBONA will reoffend.

43.    Considering the nature and seriousness of Mr MANEBONA's conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr MANEBONA reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.

25    At R [44]–[47], the Minister considered the “Expectations of the Australian Community”. The Minister concluded as follows on the matters of the national interest:

Conclusion on national interest considerations

48.    In deciding whether I am satisfied that it is in the national interest to cancel Mr MANEBONA’s Class BC Subclass 100 Spouse 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.

49.    In the specific case of Mr MANEBONA, I find that it is in the national interest to cancel his visa, having regard to his very serious criminal conduct, including family violence offending and violent crimes against women, the very serious risk that he poses to the Australian community if he were to reoffend, and my finding that he poses an ongoing, albeit somewhat reduced, risk of reoffending.

50.    Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr MANEBONA’s Class BC Subclass 100 Spouse visa is in the national interest.

26    The Minister then, recognising that the power to cancel a visa under s 501BA is discretionary, considered relevant considerations that might support a decision not to set aside the Tribunal’s Decision and cancel the appellant’s visa, even though he was satisfied that it is in the national interest to cancel the visa, under the following subheadings:

(a)    “Best interests of minor children” – the Minister found it was in the best interests of the appellant’s two children and two nieces not to cancel his visa. This was tempered somewhat due to the family violence conduct engaged in by the appellant. However, this was still given substantial weight against cancellation.

(b)    “Ties to Australia” – the Minister found that the appellant’s immediate family in Australia would experience emotional, practical and financial hardship if the appellant was unable to remain in Australia. In addition, due to the other social ties the appellant has established in Australia, those persons would experience hardship should his visa be cancelled. These matters of strength, nature and duration of the appellant’s ties to Australia weighed heavily against cancellation.

(c)    “Legal consequences of the decision” – the Minister observed that the appellant had not made any claims requiring assessment of Australia’s international non-refoulement obligations, and that the evidence did not suggest such an assessment was required. The Minister also recorded that the appellant was not covered by a protection finding under s 197C of the Migration Act.

(d)    “Impediments if removed to the Solomon Islands” – the Minister considered matters regarding the appellant’s age and health, language and/or cultural barriers and social, medical and/or economic support available in the Solomon Islands. The Minister found that the appellant’s fears in relation to his possible return to the Solomon Islands constituted an impediment and it was afforded moderate weight against cancellation of the appellant’s visa.

27    The Minister concluded that the considerations against visa cancellation were outweighed by the serious national interest considerations, which included the very serious crimes committed by the appellant, that the Australian community should not tolerate any risk of further harm and the need to protect the Australian community from risks of harm. On that basis, the Minister exercised his discretion to set aside the Tribunal’s Decision and cancel the appellant’s visa.

Ground one

28    The appellant’s case before the primary judge focussed on the Minister’s findings, at R [42], which are set out above at [24], regarding the appellant’s “continued use of alcohol” and the related risk of reoffending and, at R [94], that “he has been unable to refrain from using alcohol while in immigration detention”, construing “he has been” as a current finding, so the submission went. The Minister considered that the appellant’s risk of reoffending was linked with his risk of being unable to refrain from substance, including alcohol, abuse. The Minister had before him materials that related to the appellant’s time in immigration detention, from which he was released approximately three months prior to the Minister’s decision. The appellant contended that the materials were “dated”. The appellant’s primary contention was that the Minister effectively treated such materials as if they were up to date and proceeded on the basis that the appellant’s substance use persisted at the time of the Minister’s decision and found that the appellant had an “ongoing risk” of alcohol/drug use. Although the Minister did not use the phrase “ongoing risk” in respect of alcohol or drug use or abuse, or indeed at all, the appellant characterised the reasons in this way. The appellant further contended that the Minister’s decision was made based on information that was 17 months old and in circumstances where the appellant was not given an opportunity to demonstrate rehabilitation in the community. The appellant submitted that, given the dated material, the Minister’s decision was illogical, irrational or legally unreasonable and he relied on LJTZ and GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 (Bennett J).

Primary contention – the Minister made a finding as to state of affairs that existed at the time of the decision

29    Before the primary judge, the appellant submitted that the Minister fell into error using the following words, emphasising the word “continued”, at R [42]:

42. ... However, I remain concerned that Mr MANEBONA will be unable to refrain from substance abuse, particularly noting the IHMS records regarding his continued use of alcohol while in immigration detention and notwithstanding his engagement with rehabilitative programs and courses.

30    The appellant also submitted that by stating, at R [94], that “he has been”, the Minister made a current finding that the appellant was unable to refrain from using alcohol. The relevant sentence, at R [94], stated:

... I have also noted Mr MANEBONA’s engagement with rehabilitative programs and courses, as well as the material indicating that he has been unable to refrain from using alcohol while in immigration detention.

31    As already mentioned, the Minister considered matters relevant to the “National Interest” by reference, first, to “Protection of the community” and the need to protect the Australian community. Having made observations regarding the seriousness of the appellant’s family violence offending, the Minister considered the likelihood of the appellant reoffending and the risk he poses to the Australian community if that likelihood eventuated.

32    The Minister considered that the appellant’s risk of reoffending was linked with his risk of being unable to refrain from substance, including alcohol, abuse. The Minister considered that the appellant would be unable to refrain from substance abuse having regard to “the IHMS records regarding his continued use of alcohol while in immigration detention and notwithstanding his engagement with rehabilitative programs and courses”. As already mentioned, it was not in contention that the Minister’s reference to the “IHMS records” was an error and intended to be a reference to the “Serco records”.

33    As the start of paragraph 42 of the reasons shows (see above at [24]), the Minister considered that there were a number of factors that may have contributed to the appellant’s past offending, and noted that previous substance abuse appears to have contributed to much of the appellant’s criminal offending. Contrary to the appellant’s submission, the Minister’s use of the word “continued” read in its proper context was not a finding that the appellant’s alcohol use “continued” at the time of the Minister’s decision, and it is clear that the Minister was dealing with the appellant’s alcohol use “while in immigration detention”. So much is also supported by the words that precede the impugned finding, which reveal that the Minister made the finding having particularly noted records contemporaneous with the appellant’s time in immigration detention. The finding was that the Minister remains concerned as to whether the appellant will be able to refrain from substance, including alcohol, abuse in circumstances where the appellant had, whilst in a controlled environment and having undertaken rehabilitation, used alcohol while in immigration detention. The reference to the appellant’s “continued” use of alcohol was not in the sense that he had continuously used alcohol, but that he had not refrained from doing so while in immigration detention. This is repeated in R [94], where the Minister observed that the material before him indicated that the appellant “has been unable to refrain from using alcohol while in immigration detention”. Once again, and contrary to the appellant’s submission, this was not a current finding in respect of the appellant’s substance abuse, and was clearly expressed in terms of a time whilst the appellant was in immigration detention.

34    The Minister’s reasons must be interpreted practically and with common sense; not minutely and with an eye keenly attuned to error: see Navoto v Minister for Home Affairs [2019] FCAFC 135 at [99] (Middleton, Moshinsky and Anderson JJ), referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). However, this is not what the appellant has done, by placing emphasis on “continued” and “has been” without regard to the critical words “while in immigration detention”. The reasons do not support the appellant’s contention that the Minister made a current finding about the appellant’s substance use, including alcohol use. Rather, the Minister made a historical finding. The Minister’s reliance on this historical finding to infer there was, at the time of the Minister’s decision, a risk of reoffending is an orthodox way of assessing risk. A decision-maker assessing present risk of future events occurring may ordinarily reason from past conduct, provided the inference drawn from that conduct remains reasonably open.

35    The appellant’s primary contention is without merit.

Alternative contention – the Minister erred in reasoning based on out-of-date material

36    The appellant submitted that the latest material or evidence before the Minister was dated 23 July 2023 and, as a result, the Minister reached a state of satisfaction at the date of the decision and reasoned based on out-of-date material or in circumstances where there was approximately 17 months of no evidence.

37    Section 501BA contemplates that a decision may be made with less than the full picture, including on the basis of information that is not up to date, because the person who is in a position to inform the Minister of relevant factual information is not required to be given an opportunity to be heard: EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 492; [2023] FCAFC 130 at [36]–[37] (Abraham, O’Sullivan and Raper JJ).

38    It can be accepted that, in some cases, reliance on dated materials can make it unreasonable for findings to be made about present day circumstances: LJTZ at [48]. Those cases include where the Minister proceeds on the positive basis that the position as described in out-dated material persisted at the time of the decision. However, this was not such a case. In the present case, the Minister relied on the historical fact that, during a period of time in immigration detention, the appellant had fallen into alcohol use to provide a basis to infer that there was a risk that the appellant would be unable to refrain from substance abuse in the future and this created a risk, assessed at the time of the decision, that the appellant would reoffend. The Minister’s reasons went no further than drawing inferences as to the risk, at the time of the decision, posed to the Australian community in the future based on historical facts, which was within the parameters of permissible reasoning.

39    The present case is distinguishable from LJTZ. In that case, the Minister’s findings involved positive findings that the situation that existed at a past point in time persisted at the time of the Minister’s decision. Furthermore, those findings were made by the Minister with selective regard to particular material and without regard to further updated material that was in the Minister’s constructive possession, which contradicted that position: LJTZ at [67], [69] and [85]. That is not this case.

40    The appellant also sought to rely on the decision of Bennett J in GRCF. As the primary judge observed, at PJ [32], the relevant issue in GRCF was the irrational consideration that a state of affairs that existed 10 months earlier, namely that the applicant in that case had not sought psychological treatment or counselling, was continuing at the time of the Minister’s decision. Again, that is not apposite to the present case. The vice identified by Bennett J in GRCF was not the age of the evidence, but the Minister’s treatment of the earlier position as continuing to the date of decision. As mentioned above, the Minister did not draw an inference that a past state of affairs was continuing at the time of his decision.

41    Rather, in circumstances where the Minister was considering the risk of conduct recurring, which in turn may be related to the risk of the appellant consuming alcohol, it was not illogical or irrational for the Minister to consider that risk by reference to the fact that the appellant had consumed alcohol even in detention and notwithstanding rehabilitation, and whether or not the Minister had evidence about the appellant’s current pattern of consumption.

42    Furthermore, the appellant complained that the Minister did not give him an opportunity to demonstrate rehabilitation in the community, ignored the fact that the appellant was released into the community in about September 2024, after the Tribunal’s decision to set aside the non-revocation decision, and did not consider any evidence of the appellant’s conduct after his release from immigration detention. First and foremost, the Minister was under no obligation to provide an opportunity for the appellant to demonstrate rehabilitation in the community or take steps to obtain evidence regarding the appellant’s conduct after his release: Candemir v Minister for Home Affairs (2019) 268 FCR 1; [2019] FCAFC 33 at [15]–[27] (Collier, Robertson and Thawley JJ).

43    There is no basis to infer that the Minister was not aware that the appellant had been in the community since about the time of the Tribunal’s decision in circumstances where both the Submission, which the Minister signed, and the Minister’s reasons make it plain that he was aware of the Tribunal’s decision reinstating the appellant’s visa: see, e.g., R [5] and [39], where the Minister considered the risk of exposure of his children to family violence “if Mr Manebona [were] permitted to remain in the Australian community”. See also the Submission, provided to the Minister, which states, at [21], that the appellant “is located in the community”. The proper inference is that the Minister did not consider the fact that the appellant had been in the community, for a relatively short period of approximately three and a half months, to be of material weight in respect of his conclusion as to the appellant’s level of risk. That is permissible reasoning and does not fall into the error suggested.

44    The appellant’s alternative contention is similarly without merit.

Additional ground – failure to take into account interests of appellant’s dependent children

45    In the appeal, the appellant raised an additional argument, which was not raised before the primary judge, that the Minister failed to consider a mandatory relevant consideration, namely, “the impact of the cancellation on the [appellant’s two] dependent children in Australia”.

46    First, the contention that the Minister was required to consider the impact of cancellation on the appellant’s children cannot be accepted in circumstances where the Minister was not required to have regard to that matter when forming the requisite state of satisfaction as to whether the cancellation is in the national interest or in exercising the discretion under s 501BA(2): Vargas at [61] and see above at [16]–[17].

47    Secondly, there is no basis to infer that the impact on the appellant’s two dependent children was not considered. Those interests were plainly considered and given “substantial weight” against cancellation of the appellant’s visa at R [53]–[66], [69]–[73] and [92].

Additional ground – failure to consider psychological risk assessment report of Dr Kwok

48    In the appeal, the appellant raised a further argument, which was not raised before the primary judge, that the Minister did not consider a psychological risk assessment report of Dr Emily Kwok dated 24 July 2024 that was provided to the Tribunal.

49    Once again, there was no statutory obligation on the Minister to consider any particular item of evidence that was before the Tribunal and, as such, a failure to consider such evidence could not raise a standalone ground of jurisdictional error: Vargas at [61]–[62].

50    Secondly, there is no basis to infer that the Minister did not consider Dr Kwok’s report. The Minister stated, at R [3], that he considered the evidence before him. Dr Kwok’s report was Attachment B to the departmental Submission. The Minister’s reasons contain a number of express references to Dr Kwok’s report, including at R [34]. The reasons at R [35] included the following summary of Dr Kwok’s conclusions on the appellant’s risk of reoffending (emphasis in original):

Dr Kwok’s assessment that Mr MANEBONA’s risk of reoffending is moderate if he does not engage in treatment, however that he has begun to seek intervention in detention and is moving towards a lower risk level Attachment B;

51    Indeed, it may be inferred that the Minister considered the observations of Dr Kwok about a somewhat reduced risk of the appellant reoffending in concluding, at R [42], that “on balance, there remains an ongoing, albeit somewhat reduced, likelihood that [the appellant] will reoffend”.

Conclusion

52    For the reasons set out above, Ground one has no merit and the additional grounds or arguments are misconceived.

Ground two

53    By this ground, the appellant submitted that the primary judge erred in failing to find that the Minister did not consider the legal consequences of his decision, and thereby reasoned illogically, irrationally and unreasonably.

54    The Minister’s decision, at R [79], stated as follows:

Legal consequences of the decision

Mr MANEBONA has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is necessary in this case. Further, Mr MANEBONA is not covered by a protection finding as defined in s197C of the Act.

55    Before the primary judge, the appellant submitted that there were three particular legal consequences to the appellant of an adverse decision. While the appellant conceded that the Minister considered the consequence of the appellant’s removal from Australia, the appellant contended that the Minister failed to consider the legal consequences of mandatory detention pending removal from Australia and the likelihood of permanent exclusion from Australia. Alternatively, the appellant submitted, the Minister did not directly or expressly refer to such legal consequences.

56    The appellant submitted, for the first time in the appeal, that the Minister was obliged to consider the effect of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37 and further submitted that the Minister was obliged to consider the risk to the appellant of “indefinite detention”.

57    The appellant’s submissions regarding NZYQ may be disposed of briefly. In NZYQ, the High Court found a constitutional limit to the lawfulness of immigration detention that is reached where a court is satisfied that there is no real prospect of a person’s removal becoming practicable in the reasonably foreseeable future. This was in part due to NZYQ having been the subject of a protection finding that returning him to his country of nationality would breach Australia’s non-refoulement obligations. The High Court was not satisfied there existed realistic possibilities for the removal of NZYQ to a third country. The effect of the High Court’s decision in NZYQ is that detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 of the Migration Act if there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.

58    As the Minister submitted, the appellant was not part of the NZYQ cohort and was not seeking protection. Before the primary judge, the appellant accepted that he had not made any protection claims that would engage any non-refoulement consideration: see PJ [60]. The primary judge also observed, at PJ [66], that the appellant had not submitted that he would be subject to indefinite detention. That is sufficient to dispose of the appellant’s reliance on NZYQ.

Relevant principles

59    It is well established that in making a decision under ss 501(1), (2) and (3) the Minister is bound to take into account the legal consequences of a decision because those consequences are part of the legal framework in which the decision is made: see Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 at [84] (Kenny, Flick and Griffiths JJ) and Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; [2016] FCAFC 61 at [107] (North J), [126] (Kenny and Perry JJ), referring to NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38.

60    The principle has also been applied to decisions under s 501A: see AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586; [2024] FCAFC 103 at [28] and [33] (Murphy, Stewart and McEvoy JJ).

61    Similarly, the principle has also been applied to decisions under s 501CA: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [15]–[16], [24]–[25] and [34] (Kiefel CJ, Keane, Gordon and Steward JJ); Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [138]–[139] (Robertson, Moshinsky and Bromwich JJ); Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [17]–[21] (Rangiah J); JRX25 v Minister for Immigration and Citizenship [2026] FCA 1170 at [30]–[38] (Dowling J). However, the statutory context is materially different under s 501CA, including because the legal consequences of a decision may form part of a representation made by the person the subject of the prospective decision under s 501CA(4). Furthermore, consideration of the legal consequences of a decision is separately reinforced by the statutory requirements under s 499(2A) of the Migration Act.

62    In NBMZ at [9], Allsop CJ and Katzmann J concluded that “to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision”. Further, it is the “practical realities” in “human terms” of the legal consequences that are important rather than the legal consequences in the abstract: NBMZ at [3], [9]–[10] (Allsop CJ and Katzmann J) and see also Cotterill at [107] (North J), [129] (Kenny and Perry JJ).

63    The question whether the Minister is bound to consider the legal consequences of the exercise of the Minister’s discretion under s 501BA was raised in CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199, but it was not resolved because the Court disposed of the appeal on other grounds: see [18]–[19] (Perry, Cheeseman and Shariff JJ). The issue also arose but was not necessary to decide in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ (2026) 316 FCR 273; [2026] FCAFC 52. In that decision, the vice in the Minister’s reasoning, as identified by the primary judge (which finding was not challenged on appeal), was the way in which the legal consequences were considered rather than a failure to consider the same: at [57]–[59] (Perry, Kennett and Shariff JJ).

64    In recent weeks, the Full Court accepted that the Minister is bound to consider the legal consequences of the exercise of the Minister’s discretion under s 501BA: Chukwuma v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 121 at [64]–[65] and [72]–[75] (Moshinsky and Dowling JJ). Prior to that, single judges of the Court have accepted that there is a duty to consider the legal consequences of an exercise of the discretion conferred by s 501BA in deciding whether to exercise that discretion: see, e.g., KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 at [99] (Wigney J); BTLD v Minister for Immigration and Multicultural Affairs (2025) 310 FCR 606; [2025] FCA 600 at [21] (Burley J); GRCF at [63] (Bennett J); Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24 at [26] (Lee J); CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [59]–[61] (Owens J); SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954 at [27] (Perram J); XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210 at [47] (Horan J); Williams v Minister for Immigration, Citizenship & Multicultural Affairs [2026] FCA 341 at [60] and [67]–[69] (Longbottom J); Xue v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 682 at [16] (Jackman J) and Fraser v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 336 at [31]–[38] (Colvin J).

65    We agree.

66    The Minister raised the issue that a debate has emerged in this Court as to whether, in making a decision under s 501BA(2), the Minister is required to take into account the direct and immediate legal consequences of the decision, or whether the Minister may be required to also take into account indirect and non-immediate legal consequences. The debate was explained eloquently by Colvin J in Fraser, at [32]–[39], in the following terms:

32.    Where NBMZ has been applied, it has been said to require the Minister to take into account the practical consequences or practical realities of the decision: see Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [107] (North J), [129] (Kenny and Perry JJ); recently applied in Deng v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 260 at [12], [14], [17] (Shariff J); and Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 (Feutrill J) at [4]‑[6]. In KFTJ, Wigney J referred to ‘likely practical consequences’: at [117].

33.    It has been said that the statutory framework requires the Minister to take into account the ‘direct and immediate statutorily prescribed consequences’ of the decision in contemplation: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ). In that decision, their Honours expressed the principle in NBMZ as giving effect to a requirement that ‘in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account’.

34.    In BTLD, Burley J reasoned that the Minister’s duty to have regard to legal consequences in the exercise of discretion under s 501BA is limited to direct consequences: at [21]. However, it was observed by Feutrill J in Rano that the Full Court in Taulahi did not expressly exclude indirect and non-immediate legal consequences from also being mandatory considerations: at [4]. Accordingly, the ‘subject matter, scope and purpose of the legislation may well require a decision-maker to take into account indirect and non-immediate legal consequences that form part of the legal framework of a discretionary decision under that legislation where those consequences flow from the decision by operation of the Act’: Rano at [6] (noting that Rano concerned s 501CA, not s 501BA).

35.    Further, the view has been expressed that the principle only applies to legal consequences that are ‘inevitable or certain’ and not to those that are ‘merely probable or arguable’: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; (2023) 298 FCR 609 at [101] (Perry J, Bromwich and Kennett JJ agreeing). However, a different approach appears to have been taken in Cotterill. There, it was observed that in NBMZ it was ‘virtually certain’ on the facts that, if the Minister refused to grant a visa that the unsuccessful visa applicant would be kept in detention for an indefinite time. Even so, it was concluded in Cotterill that the legal consequence of indefinite detention was a mandatory consideration if it was ‘a real possibility’.

36.    Therefore, regard to the authorities appears to indicate a conflict in views as to the degree of likelihood of those legal consequences that must be taken into account for there to be a valid exercise of a statutory discretion. For the following reasons, the difference in views may reflect the nature of the principle.

37.    As has been mentioned, regard to the subject matter, scope and purpose of an Act may lead to the conclusion, as a matter of construction, that certain considerations are considerations that must be taken into account for the valid exercise of the discretion. The authorities link the principle that is concerned with the legal consequences of a decision with the principle that a broad statutory discretion is limited by the subject matter, scope and purpose of the Act: see NMBZ at [9]; and Taulahi at [84]. That is to say, it is an approach to statutory construction of the same kind as that explained in Peko-Wallsend (an approach that is often applied). Conceptually, the limits of the construction principle concerning legal consequences must accord with its character as a tool of statutory construction. Accordingly, it appears that the principle is properly stated in the following terms; namely, regard to the legal consequences which flow from the exercise of a statutory discretion in the legal framework within which the discretion is conferred may lead to the conclusion, as a matter of statutory construction, that the legal consequences must be taken into account for there to be a valid exercise of the discretion.

38.    Consequently, in a particular case, the legislative framework may be such that a legal consequence that is not direct or certain is, nevertheless, a consequence of a kind which must be taken into account if there is to be a valid exercise of power. All will depend on the circumstances. It follows that, with respect, I agree with Feutrill J that the ‘subject matter, scope and purpose of the legislation may well require a decision-maker to take into account indirect and non-immediate legal consequences that form part of the legal framework of a discretionary decision under that legislation where those consequences flow from the decision by operation of the Act’. Less obvious, less certain and less substantial legal consequences are unlikely to be a basis for the application of the principle. It should be remembered that in NMBZ the consequences were both certain and significant, namely indefinite detention. Nevertheless, all depends on the particular statutory context.

67    We respectfully agree with Colvin J’s expression of the applicable principles in Fraser at [37]–[38]. The starting point is for regard to be had to the subject matter, scope and purpose of the Migration Act. As his Honour said, regard to the consequences which flow from the exercise of the statutory discretion under s 501BA in the legal framework within which the discretion is conferred may lead to the conclusion that the legal consequences, in terms of the practical realities, must be taken into account for there to be a valid exercise of the discretion. Much will depend on the circumstances, being the subject matter, scope and purpose of the statute and the nature of the asserted legal consequences.

Legal consequences of mandatory detention pending removal from Australia

68    The legal consequences to the appellant of the Minister’s decision to set aside the Tribunal’s decision and to cancel the appellant’s visa were to render the appellant an “unlawful non-citizen” and thus liable to mandatory detention pending removal under ss 189 and 198 of the Migration Act, noting the absence of any non-refoulement or protection issues raised by the appellant in this case. As already mentioned above, the appellant was not part of the NZYQ cohort and there was nothing to suggest that immigration detention would be indefinite. The consequences to the appellant which flowed from the Minister’s decision included that the appellant would be in mandatory detention pending removal from Australia, which the Minister was required to take into account in exercising the discretion under s 501BA(2). We are satisfied that the Minister considered those legal consequences, and indeed, referred to them as such in the reasons.

69    The following settled principles apply to statements of reasons and inferences that can be drawn from such reasons. First, the statement of reasons must be read fairly and not in an unduly critical manner and it must be read in light of the content of the statutory obligation, if any, pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The Court is not astute to discern error when considering the meaning of reasons. Further, any inference that the Minister has not engaged in an active intellectual process, that is, by failing to consider a relevant matter, will not lightly be made and must be supported by clear evidence, bearing in mind the applicant for judicial review carries the onus of proof: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48] (Griffiths, White and Bromwich JJ). A mere non-reference to a matter in a statement of reasons does not necessarily mean that the matter was not considered, however, it may entitle the Court to infer it was not considered to be material: Carrascalao at [45].

70    As already mentioned, the Minister was provided with a draft statement of reasons and the department’s Submission, which he signed indicating that he had read it. The Submission, at paragraph 17, recorded the following:

17.     A decision to set aside the decision of the AAT and cancel Mr MANEBONA's visa will result in him becoming an unlawful non-citizen, liable for immigration detention under s189 of the Act. Following such a decision, the Department of Home Affairs (the Department) will give Mr MANEBONA notice of your decision and take him into immigration detention. Once detained, unless a new visa is granted, Mr MANEBONA will be liable to removal from Australia as soon as reasonably practicable and, in the meantime, liable to detention under s189, provided that removal is practicable in the reasonably foreseeable future, or until granted a visa. If you do not cancel Mr MANEBONA's visa, he will remain in the community.

71    The reasons make clear that the Minister was aware that he was considering whether to set aside the Tribunal’s decision and cancel the appellant’s visa: see R [1] and above at paragraph 20. The reasons also show that the Minister was aware that the consequence to the appellant of the matter the Minister was to decide would “inevitably result in the cancellation of [the appellant’s] visa, a return to immigration detention and almost certain deportation in due course”: R [38].

72    The Minister plainly was aware of and, it may be inferred, considered the legal consequences of the decision for the appellant, namely, a return to immigration detention and removal from Australia. Furthermore, the Minister clearly referred to that consequence, at R [38]. Although the Minister did not describe it in terms of “legal consequences”, we reject the appellant’s submission that the Minister did not refer to such legal consequences “directly or expressly”.

Legal consequences of permanent exclusion from Australia

73    Before the primary judge, the appellant argued that the Minister did not consider the legal consequences to which the appellant would be subject, arising from the operation of s 501E of the Migration Act, which was extended to include cl 5001(d) of Schedule 5 of the Migration Regulations 1994 (Cth), being the special return criteria. The consequence was described in terms of the appellant’s “permanent exclusion” from Australia.

74    Section 501E relevantly provides:

501E    Refusal or cancellation of visa—prohibition on applying for other visas

(1)    A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a)    at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b)    the decision was neither set aside nor revoked before the application time.

…

(2)    Subsection (1) does not prevent a person, at the application time, from making an application for:

(a)    a protection visa; or

(b)    a visa specified in the regulations for the purposes of this subsection.

75    Under s 501E(1), the appellant cannot apply for any visa while he is in the migration zone, other than a protection visa (s 501E(2)(a)) or a visa specified in the regulations for the purposes of s 501E(2)(b). As already mentioned, there was no suggestion that the appellant qualified for a protection visa or that he had applied for a visa specified in the regulations: see R [2]. Once the appellant was removed from Australia there would, in effect, be a prohibition on his return by reason of cl 5001(d) of Schedule 5 to the Migration Regulations. The prohibition on the appellant’s return is, in effect, because the regulations make it a “special return criteri[on]” that the person seeking to re-enter Australia must not have had a previous visa cancelled under s 501BA.

76    This aspect of Ground two occupied a relatively lengthy part of the primary judgment because of what was described, to her Honour, as disparate views on whether in exercising the discretion under s 501BA(2) the Minister is required to take into account the legal consequences of permanent exclusion. Her Honour was taken to several authorities where the conclusions and the paths of reasoning differed, as to whether the consequences required “legal proximity”. In light of the conclusion that we have reached, it is not necessary to canvass the authorities, other than to note the following.

77    The earliest decision in which the issue of permanent exclusion under the special return criteria was considered was in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154; [2014] FCA 1221 (Jessup J). In that case, the applicant contended that the Minister failed to have regard to the circumstance that, under the “special return criteria” in Sch 5 to the Migration Regulations, a legal consequence of the Minister’s decision was that the applicant “could never be granted a visa to return to Australia”. The Minister having accepted that the decision carried such a consequence, Jessup J relevantly found that the consequence lacked the required “legal proximity” or “practical immediacy” to the decision to justify the conclusion that, as a matter of law, the decision could not have been validly made without taking it into account: at [25]–[28].

78    Next, in DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 at [5] and [15], Flick J said that not all of the reasoning in Tanielu should be followed, but held that the consequences imposed by the Migration Regulations, as opposed to the Migration Act, probably fell outside the matters which the Minister was required to consider and lacked the required “legal proximity”, to use Jessup J’s expression. Snaden J agreed with the reasoning and the result in Tanielu, and therefore agreed with the conclusion of Flick J: at [80]. However, Bromberg J disagreed with the reasoning and result in Tanielu, and therefore disagreed with Flick J and Snaden J: at [27]–[28]. Bromberg J observed, at [28]:

Considered through the prism of the subject‑matter, scope and purpose of the Migration Act and, bearing in mind that the legal consequence in question flows directly from regulations made to give effect to that Act, the consequence for a person the subject of a non-revocation decision that he or she would be precluded from returning to Australia is, in my view, clearly within the ambit of the statutory framework that the maker of a non-revocation decision has to have regard to.

79    In Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637, at [59]–[61], Logan J, in the context of representations put forward by an applicant as “another reason” under s 501CA(4), came to the conclusion that the legal consequence of permanent exclusion was a mandatory consideration for the purpose of that section.

80    Similar arguments regarding permanent exclusion as a mandatory consideration have been raised in other cases, but the outcome in those cases turned on their own facts: see, e.g., Pinikera v Minister for Immigration and Multicultural Affairs [2026] FCA 813 at [38]–[40] (Rangiah J) (in relation to s 501); Williams v Minister for Immigration, Citizenship & Multicultural Affairs [2026] FCA 341 at [61] and [67]–[69] (Longbottom J) (in relation to s 501BA).

81    In the present case, it is unnecessary to comment further on the question of “legal proximity” postulated in Tanielu and DLJ18 in light of the conclusion we have reached, set out below. Nor would it be appropriate to do so because, without any criticism of the parties, the Court did not receive detailed submissions in relation to this complex legal question on which judges of this Court have expressed divergent views. We would prefer to reserve consideration of that question for an appropriate case.

82    Before the primary judge, the appellant argued that, once the appellant’s visa is cancelled, he would be liable for mandatory detention pending removal from Australia, and the “direct and immediate consequence is that [the appellant] may be unable [to] make an application for a visa which is not a valid application for a visa, and hence is not to be considered, due to the operation of s 45, s 46(1)(d)(vi), s 47 and s 501E of the Act”: see PJ [88]. The primary judge noted that the appellant did not identify which visa he could or could not apply for.

83    The primary judge, at PJ [88], considered that the legal consequence of s 501E depended on “speculation as to whether or not an application for a particular kind of visa might be made”. For that reason, her Honour doubted that the legal consequence of s 501E was a mandatory consideration in the exercise of s 501BA: PJ [88]. Nevertheless, her Honour found that it was unnecessary to decide the issue because she was satisfied that the Minister had considered the substance of the asserted legal consequences of permanent exclusion of the appellant from Australia, even though there was no express reference to s 501E or cl 5001: at PJ [87]–[94].

84    Relevantly, the reasons stated as follows (emphasis added):

1.     This statement relates to my decision under s501BA of the Migration Act 1958 (the Act) to set aside a decision made by the Administrative Appeals Tribunal (AAT) and to cancel the Class BC Subclass 100 Spouse visa held by Mr MANEBONA at the time of my decision.

2.     Mr MANEBONA does not hold, and has no outstanding application for, a protection visa or any other visa prescribed by the Migration Regulations 1994 (Cth). As a result of my decision, Mr MANEBONA therefore no longer holds any visa, and all applications for any other visa have been finalised.

...

DISCRETION

51.     Recognising that the power to cancel a visa under s501BA is discretionary, I considered whether there were relevant considerations that might support a decision not to set aside the decision of the AAT and cancel Mr MANEBONA's visa, even though I am satisfied that he does not pass the character test and even though I am also satisfied that it is in the national interest to cancel the visa. I have taken into consideration the circumstances below.

52.     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. While I give the protection of the Australian community greater weight than any other relevant matters when exercising my discretion, I have in addition taken into account the following considerations.

...

57.     I have had regard to the AAT decision, which found that the impact of Mr MANEBONA's removal upon his two minor children would be "very considerable" and "the children will suffer grievously from a lack of any basic connection with their father" if Mr MANEBONA is returned to the Solomon Islands. The AAT further found that although Mr MANEBONA's minor children witnessed Mr MANEBONA's considerable violence against their mother, Mr MANEBONA can make a substantial contribution, both financially and emotionally, to their immediate needs and to their ongoing well-being and development

...

80.     I have considered the extent of any impediments that Mr MANEBONA, if removed from Australia to the Solomon Islands, will face in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of the Solomon Islands, taking into account the following factors.

85    The Minister’s reasons record, at R [2], that the Minister was aware that the appellant did not hold and had no outstanding application for a protection visa or any other visa prescribed by the Migration Regulations and that, as a result of the Minister’s decision, the appellant therefore no longer holds any visa. The Minister was aware that the appellant would be in mandatory detention pending removal. The above matters demonstrate that the Minister considered that the appellant was returning to the Solomon Islands permanently and that the consequence and effect of the Minister’s decision was, by operation of the legislative scheme, that the appellant was being removed from Australia on a permanent basis.

86    Therefore, it can be inferred from the reasons that the Minister considered that the consequence of cancellation of the appellant’s visa under s 501BA of the Migration Act would be his permanent exclusion from Australia.

Conclusion

87    For those reasons, Ground two has no merit.

88    Finally, and for completeness, the appellant’s submissions in relation to Ground two stated that he relied on “Davis v Minister FCAFC 17” for the proposition that “the Minister must consider if removal is practicable and the risk of indefinite detention”. Senior Counsel for the Minister told the Court that they had not been able to locate an authority that matched that name and citation, however, they were aware of a High Court authority with a similar name, being Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10. As the Minister submitted, that authority is not on point and does not assist the appellant.

conclusion

89    For the reasons set out above, the grounds of appeal have no merit and the appeal is dismissed, with costs.

Associate:

Dated:    24 September 2026