Federal Court of Australia

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14

ORDERS

THE COURT ORDERS THAT:

1.    The second further amended originating application for review of a migration decision filed on 20 December 2024 be dismissed.

2.    The applicant is to pay the costs of the respondent, as taxed if not agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    In this proceeding the applicant seeks an order restraining the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), from giving effect to his decision to cancel the applicant’s Class XE Subclass 790 Safe Haven Enterprise visa (Safe Haven Visa) pursuant to s 501BA(2) of the Migration Act 1958 (Cth) (Act), and an order quashing the Minister’s decision.

2    The Minister cancelled the Safe Haven Visa on the basis that he was satisfied that the applicant did not pass the character test and that it was in the national interest to do so and set aside an earlier decision of the Administrative Appeals Tribunal (Tribunal) revoking an earlier cancellation of the Safe Haven Visa.

3    The applicant contends that the Minister’s finding under s 501BA(2)(b) of the Act that the cancellation of the applicant’s visa was in the national interest was unreasonable, illogical or irrational. The applicant contends that this finding was a jurisdictional fact that was a precondition to the making of the decision, and the Minister’s decision was therefore affected by jurisdictional error.

4    The principal issue that arises in this proceeding is whether the Minister’s decision was legally unreasonable because the cancellation of the Safe Haven Visa could not rationally protect the Australian community or meet the Australian community’s expectations because the applicant would nonetheless remain in the community given the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; [2023] HCA 37.

5    The applicant filed written submissions on 12 November 2024 and supplementary written submissions in reply on 19 December 2024 and relied on an affidavit that he affirmed on 11 October 2024.

6    The Minister filed written submissions on 25 November 2024 and supplementary submissions on 16 December 2024.

7    At the hearing the applicant relied on a further amended originating application which only sought a writ of certiorari to quash the Minister’s decision. In Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1419, an issue arose as to whether the Court’s jurisdiction is limited to the matters referred to in s 75(v) of the Constitution, which vests jurisdiction where a writ of mandamus or prohibition or an injunction (but not certiorari) is sought against an officer of the Commonwealth. In this proceeding, following the hearing, the applicant sought leave with the consent of the Minister and without conceding the issue with respect to jurisdiction, to file and rely on a second further amended originating application seeking a writ of prohibition in addition to a writ of certiorari. Consistently with the approach taken by Button J in Jama at [8], I granted leave to the applicant to file and rely on the second further amended originating application. It is therefore not necessary to address any jurisdictional issue had the application not been amended.

B.     Background

8    The applicant is a citizen of Sri Lanka who arrived in Australia as a maritime arrival on 17 April 2013.

9    In the period between 30 July 2013 and 30 June 2022 the applicant was granted a series of temporary visas.

10    On 30 June 2022, the applicant was granted the Safe Haven Visa.

11    On 25 January 2023, the applicant was convicted of an offence of intentionally sexually touching a child aged between 10 years and 16 years. He was sentenced to imprisonment for 9 months with a non-parole period of 4 months. It is not in dispute that the applicant does not pass the character test in s 501(6)(e)(i) of the Act.

12    On 3 February 2023, the applicant’s Safe Haven Visa was mandatorily cancelled.

13    On 5 July 2023, a delegate of the Minister declined to revoke the cancellation of the Safe Haven Visa (delegate’s decision).

14    On 15 September 2023, the Tribunal set aside the delegate’s decision and revoked the mandatory cancellation of the Safe Haven Visa (Tribunal’s decision).

15    On 14 June 2024, the Minister exercised his discretion under s 501BA of the Act to set aside the Tribunal’s decision (Minister’s decision).

16    On 25 July 2024, the applicant lodged an application seeking judicial review of the Minister’s decision.

C.     The Minister’s decision

17    In his statement of reasons for decision (SR), the Minister proceeded on the basis that matters of national interest for the purposes of s 501BA of the Act included the protection of the Australian community, the expectations of the Australian community and the legal consequences of the decision made under s 501BA of the Act: SR [17]. The Minister also stated that he had also decided to consider non-refoulement issues in assessing whether cancellation of the applicant’s visa was in the national interest: SR [18]. The Minister then addressed each of these considerations in discrete sections of his statement of reasons for decision.

18    The Minister first addressed the protection of the Australian community consideration. The Minister had regard to the nature and seriousness of the offending and risk to the Australian community. The Minister concluded that the nature of the applicant’s offending was very serious and found that on balance there remained a real likelihood, albeit low, that the applicant would reoffend. He stated that he gave this consideration significant weight in support of the cancellation of the applicant’s visa and that if the conduct and harm that the offending caused was to be repeated it would be so serious that “any risk that it may be repeated may be unacceptable”: SR [52]-[55].

19    Next, the Minister addressed the expectations of the Australian community consideration. The Minister stated the Australian community expects that (a) non-citizens should obey Australian laws while in Australia, and (b) where a non-citizen engages in serious conduct in breach of that obligation, or there is an unacceptable risk that they may do so, as a norm, the government would not allow such a non-citizen to enter or remain in Australia. The Minister concluded that the applicant’s offending involved crimes of a sexual nature against a child and raised serious character concerns and the community expectations identified above applied, including the expectation that non-citizens who commit serious breaches of the law should not be allowed to enter or remain in Australia. The Minister concluded that this consideration weighed heavily in favour of visa cancellation and he attributed significant weight to this consideration towards a finding that it was in the national interest to set aside the Tribunal’s decision and cancel the applicant’s visa: SR [57]-[59].

20    The Minister then addressed the legal consequences of the decision consideration, including Australia’s international non-refoulement obligations. The Minister noted that the applicant’s claims about the risk of harm he would face if he were removed to Sri Lanka given his Tamil ethnicity and his torture by the Sri Lankan authorities had been accepted in the course of the assessment of his application for his Safe Haven Visa and the applicant was therefore a person to whom Australia owed non-refoulement obligations. The Minister found that the existence of non-refoulment obligations weighed against cancellation but the harm feared would not arise as the non-refoulment finding means that the applicant will not be removed to Sri Lanka and thus the existence of those obligations does “not carry weight in itself”: SR [63]-[66].

21    As part of his consideration of the legal consequences of the decision, the Minister also acknowledged that given the decision of the High Court in NZYQ and the absence of any real prospect that the applicant could be removed to a third country, the applicant would not be subject to indefinite detention pending his removal: SR [68]-[69]. The Minister stated that he “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”: SR [70].

22    Having determined that it was in the national interest to cancel the applicant’s Safe Haven Visa under s 501BA(2), the Minister then considered whether there were any discretionary factors that might support a decision not to cancel the visa. The Minister considered the best interests of minor children (noting there were no minor children affected and thus concluding the consideration was neutral), the strength, nature and duration of the applicant’s ties to Australia (concluding they weighed slightly against cancellation), and the extent of impediments the applicant would face if he were removed to Sri Lanka (noting that any impediments could not arise as a direct result of cancellation because the conditions under which the applicant could be removed to Sri Lanka did not presently exist): SR [78]-[90].

23    The Minister weighed these competing considerations and concluded at SR [96]-[97]:

I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further criminal or other serious conduct by [the applicant]. The Australian community should not tolerate any risk of further harm.

In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens. I am of the view that the Australian community generally would expect non-citizens who have engaged in sexual conduct against a child not to continue to hold a visa, especially where the non-citizen continues to pose a risk to the Australian community.”

D.     Statutory context and legal principles

24    Section 501BA of the Act applies if, relevantly, the Tribunal makes a decision under s 501CA of the Act (original decision) to revoke a decision made pursuant to s 501(3A) to cancel a visa that has been granted to a person.

25    The Minister’s discretion to set aside the original decision and cancel a person’s visa pursuant to s 501BA(2) is enlivened if the Minister is satisfied that (a) the person does not pass the character test and (b) the cancellation is in the national interest. Ultimately, what is “in the national interest” is largely a “political question”: Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

26    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, the Full Court summarised the position with respect to the legal unreasonableness ground of review as follows at [34]-[35] (Allsop CJ, Besanko and O’Callaghan JJ):

The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

E.     Grounds of review

E.1.     Overview

27    The Minister’s determination that the cancellation of the applicant’s visa was in the national interest was principally based on his findings concerning the protection of the Australian community (community protection consideration) and the expectations of the Australian community (community expectations consideration).

28    Given the applicant’s challenge to the Minister’s reliance on the community protection consideration and the community expectations consideration raise essentially the same issues, it is convenient to address them together.

E.2.     Principal submissions of the parties

29    The applicant submits that the “significant weight” that the Minister attributed to these considerations in determining that cancellation of the applicant’s Safe Haven Visa was in the national interest was illogical, unreasonable or irrational. He submits that the finding that the cancellation was in the national interest was an essential jurisdictional fact enlivening the exercise of discretion to cancel a visa under s 501BA of the Act and the Minister’s cancellation decision was vitiated by jurisdictional error.

30    The applicant accepts that it was open to the Minister to find that there is a “real likelihood, albeit low” that the applicant will reoffend, that such re-offending would likely result in serious psychological injury, and that any risk that the applicant may re-offend is “unacceptable”. The applicant submits that implicit in those findings is that there must be a rational relationship between the protection of the community and the cancellation of the applicant’s Safe Haven Visa. He submits that, in some cases, it is the consequences of cancellation of a visa, such as detention or removal of an applicant, that might rationally affect the safety of the community, not the cancellation itself. Given the Minister accepts, however, that the applicant would remain in the community irrespective of whether his Safe Haven Visa was cancelled, the applicant submits that there could be no rational basis for the Minister to conclude that his findings on the community protection consideration could weigh in favour of cancellation of the applicant’s Safe Haven Visa.

31    Similarly, the applicant accepts that the Minister was entitled to have regard to community expectations in determining whether cancellation of the applicant’s Safe Haven Visa was in the national interest. Again, however, the applicant submits that given that the applicant would remain in the community irrespective of whether the visa was cancelled, it was irrational or illogical for the Minister to find that the community’s expectations weighed in favour of cancellation.

32    The Minister ultimately advances two principal submissions in opposition to the applicant’s contentions.

33    First, the Minister submits that the applicant’s cancelled Safe Haven Visa conferred significant rights on the applicant that potentially could have enabled the applicant to remain permanently in the Australian community without any conditions and gave him a potential path to citizenship. The Minister submits that the applicant is substantively in the same position as the unsuccessful applicant in JNMQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1375.

34    Second, the Minister submits that the applicant’s contentions assume the community protection consideration required an “immediate and absolute protection” either by removal or detention rather than a more qualified and long term approach within the boundaries imposed by the Act and the reasoning in NZYQ.

35    The applicant submits that the Minister is limited to considering the “inevitable or certain legal consequences” of his decision or its “direct and immediate consequences”, citing BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609; [2023] FCAFC 111 at [101] (Perry J, with whom Bromwich and Kennett JJ relevantly agreed); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 at [81]-[86] (Kenny, Flick and Griffiths JJ); PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 at [29] (Perram J). He submits that the Minister’s reliance on the possibility of the applicant applying for and being granted a Class CB Subclass 851 Resolution of Status Visa (Resolution of Status Visa) is not an inevitable, immediate, certain nor direct legal consequence of the Minister’s decision. Moreover, he submits given the requirement to satisfy the public interest criterion in reg 4001, which in turn picks up the character test in s 501(6) of the Act which the Minister has previously found the applicant did not pass, the grant of a Resolution of Status Visa to the applicant is “at best a remote possibility”.

36    Next, the applicant submits that any consideration that the applicant’s Safe Haven Visa might potentially have given him the opportunity to remain permanently in the community and without any condition did not form any part of the Minister’s reasoning process. He submits that the Minister is now impermissibly inviting the Court to find an alternative basis to support the visa cancellation and that goes beyond the scope of judicial review.

37    The applicant submits that the decision of Jackman J in JNMQ can be distinguished on the basis that the applicant in this proceeding only had a hypothetical right to apply for a Resolution of Status Visa and unlike in this proceeding, the Minister in JNMQ had explicitly considered the applicant’s permanent status and pathway to citizenship in his reasons.

E.3.     Consideration

38    There is a superficial attraction to the applicant’s submissions, not least because of the ostensibly discrete manner in which the Minister reasoned that the community protection consideration and the community expectations consideration weighed heavily in favour of cancellation in his statement of reasons. The Minister made those findings at SR [55] (with respect to the community protection consideration) and SR [58] (with respect to the community expectations consideration), without any consideration or acknowledgment that cancellation of the applicant’s visa would not result in the removal of the applicant from the Australian community, either by the applicant being placed in immigration detention or his removal from Australia. Rather, the reasoning proceeded on the basis that cancellation of the applicant’s visa was necessary for and would relevantly enhance the protection of the community and it would be consistent with community expectations that persons convicted of serious harm should not remain in the community.

39    On balance, however, for the reasons that follow, I am not persuaded that the Minister’s reliance on his community protection and community expectations findings to conclude that the cancellation of the applicant’s visa was in the national interest was irrational or illogical so as to give rise to jurisdictional error.

40    In JNMQ, Jackman J did not accept a contention raised by the applicant that it was illogical for the Minister to attribute significant weight to the protection of the Australian community in deciding to set aside a decision of the Tribunal and to refuse to grant a visa because the concomitant outcome of the refusal decision would be that the applicant would not be taken into detention but rather would continue to reside in the community by reason of NZYQ. His Honour concluded at [27]:

As the Minister submits, it was logical and rational for the Minister to give significant weight to the protection of the Australian community in assessing whether the national interest favoured the applicant being granted an indefinite right to remain in Australia. As the Minister submits, not only does a permanent visa entitle its holder to an indefinite right to remain in Australia, but permanent residency is one of the criteria for a non-citizen seeking conferral of Australian citizenship: s 22(1)(c) of the Australian Citizenship Act 2007 (Cth). Thus, the question for the Minister’s consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa. This is reflected in the Minister’s reasons at [53], in which the Minister referred to the applicant having applied for a Class CD Subclass 851 Resolution of Status Visa for the purpose of remaining permanently in Australia, and stated that he had considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application.

41    The applicant sought to distinguish JNMQ on two principal bases. First, the applicant in JNMQ had applied for a Safe Haven Visa, but as explained below (at [44]) this had been converted into an application for a Resolution of Status Visa (which is a permanent visa), whereas the applicant’s Safe Haven Visa was a temporary visa which only gave him the right to apply for a Resolution of Status Visa. Second, in JNMQ the Minister explicitly considered the risk of harm to the Australian community in the context of the permanent stay period for the specific purposes of the visa application, whereas the Minister did not do so in the present case.

42    The effect of the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 (Cth) (Transition Regulations) is that if a person (a) has an unresolved application on the “TPV/SHEV transition day” (14 February 2023) for a Subclass 785 (Temporary Protection) visa (Temporary Protection Visa) or a Safe Haven Visa, the application will automatically be converted to an application for a Resolution of Status Visa, or (b) holds a Temporary Protection Visa or a Safe Haven Visa that has not been subsequently cancelled, they are able to make an application for a Resolution of Status Visa. A Resolution of Status Visa is a permanent visa.

43    As the holder of a Safe Haven Visa who was in Australia but not in immigration clearance, the applicant had been entitled to apply for a Resolution of Status Visa, had his Safe Haven Visa not been cancelled, because the applicant first entered Australia before the “TPV/SHEV transition day” and the applicant had not previously made a valid application for a Temporary Protection Visa or a Safe Haven Visa that had not been finally determined: see Item 4 in cl 1127AA(3) in Sch 1 to the Migration Regulations. The TPV/SHEV transition day was 14 February 2023.

44    In contrast, the applicant in JNMQ fell into the first category. As at 14 February 2023, his application for a Safe Haven Visa was unresolved, and therefore the application was taken to be, and always to have been, an application for a Resolution of Status Visa: JNMQ at [7].

45    In my view, the distinction is not sufficiently material to distinguish Jackman J’s reasoning in JNMQ at [27]. As his Honour there identified, “the question for the Minister’s consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa”.

46    Further, contrary to the applicant’s submissions, none of the reasoning in BNGP, Taulahi or PLQF stands for or supports the proposition that the Minister in exercising a discretion under s 501 of the Act may only have regard to legal consequences that are “inevitable or certain” or that are the direct and immediate consequence of their decision. Rather, the jurisdictional error identified by Perry J (with whom Bromwich and Kennett JJ relevantly agreed) in BNGP at [101] was a failure to have regard to a legal consequence that was inevitable or certain. Similarly, the jurisdictional error identified by the Full Court in Taulahi at [81]-[86] (Kenny, Flick and Griffiths JJ) (as cited by Perram J in PLQF at [29]) was a failure by the Minister to take into account the direct and immediate legal consequence of their decision.

47    The Minister’s reasons, however, did not extend to a concern that it was necessary to cancel the applicant’s Safe Haven Visa in order to prevent him from applying for a Resolution of Status Visa and thereby obtaining permanent residency. As the Full Court explained in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47] (Allsop CJ, Robertson and Mortimer JJ):

The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not.

48    Nevertheless, I am satisfied that the Minister did provide an intelligible justification for his conclusion on the national interest consideration when his reasoning with respect to the community protection consideration and the community expectations consideration is read in conjunction with his reasons at SR [70]-[71].

49    It is well established that an administrative decision maker’s reasons must be read as a whole and not with an eye finely attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Decision makers typically review the whole of the evidence before them, and consider all of the evidence before them before writing anything: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [14] (Gleeson CJ). The expression of a conclusion by an administrative decision maker in a particular sequence does not necessarily indicate that they failed to consider and have regard to the evidence before them as a whole: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]-[44] (Nicholas, Yates and Griffiths JJ).

50    Any consideration of the rationality of the Minister’s community protection and community expectations findings cannot be divorced from and considered independently of the Minister’s recognition at SR [69], when considering the legal consequences of the decision, that the cancellation of the applicant’s visa, by reason of the decision of the High Court in NZYQ, would not lead to the immediate removal of the applicant from the community and would lead to the following consequences, noted at SR [70]-[71]:

I am aware that if a cancellation decision is made under s 501BA, [the applicant] will not be taken into detention. He will continue to reside in the community. 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.

I am also aware that if a cancellation decision is made under s501BA there would be significant restrictions on [the applicant’s] ability to apply for another visa. In particular, I understand that [the applicant] would be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to [the applicant] as a result of a cancellation decision under s501BA, with the effect that his visa would remain cancelled under s501. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than 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. I have given this consideration minor weight.

51    Read in context, it is plain that the reference to the consideration given “minor weight” is the consideration that if the applicant’s Safe Haven Visa was cancelled the applicant would not be able to apply for any visa other than a Bridging R (Class WR) visa.

52    The Minister’s reasoning at SR [70]-[71] makes plain that he appreciated that the applicant would remain in the community but on a different visa and subject to the imposition of conditions following advice from the Department of Home Affairs and that the applicant’s ability to apply for alternative visas would be materially reduced. Relatedly in JNMQ, the Minister had set aside a decision of the Tribunal and refused to grant the applicant a Resolution of Status Visa and then deferred consideration of the type of visa to be granted to the applicant “following further advice from the Department”: JNMQ at [22(b)].

53    The applicant submitted that where the Minister has provided reasons in relation to the community protection consideration and community expectations consideration, and did not refer to the matters raised in SR [70]-[71] in those reasons, it should not be inferred that he had regard to those matters in addressing those considerations, citing the passage from Singh set out above at [47].

54    I accept as submitted by the applicant that the Minister’s reasons at SR [70]-[71] were part of his consideration of the legal consequences of his decision, and followed his findings that the community protection consideration and community expectations consideration weighed in favour of cancellation. I also accept as submitted by the applicant that these findings were made without any reference to the prospect of the applicant remaining in the community following cancellation or the circumstances considered by the Minister at SR [71].

55    I am not persuaded, however, that this has the necessary consequence that the Minister’s satisfaction that it was in the national interest to cancel the applicant’s Safe Haven Visa was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. The applicant’s offending was objectively serious and logically raised serious potential concerns for the protection of the community and community expectations with respect to the cancellation of a visa. On any view it was open to the Minister to conclude that these considerations were sufficient to support a finding that it was in the national interest to support a cancellation of the applicant’s Safe Haven Visa. At the same time, the Minister recognised that the legal consequences of the cancellation decision, given NZYQ, was that the applicant, at least for the foreseeable future, would likely remain in the Australian community.

56    The consideration by the Minister of the legal consequences of a cancellation decision was directed at both Australia’s international refoulement obligations (at SR [60]-[67]) and the practical implications of a cancellation decision given the legal effect of NZYQ (at SR [68]-[71]). Moreover, protection of the community and community expectations are not absolute concepts that require or dictate the immediate removal or detention of an applicant in order for them to be engaged or otherwise addressed.

57    The Minister’s conclusion that it was in the national interest that the applicant’s Safe Haven Visa be cancelled was necessarily an evaluative exercise. In undertaking that exercise the Minister weighed and had regard to the community protection consideration, the community expectations consideration and the legal consequences of a cancellation decision, as made plain by the following reasoning by the Minister at SR [72]-[76]:

Conclusion on national interest considerations

In deciding whether I am satisfied that it is in the national interest to cancel [the applicant’s] Class XE Subclass 790 Safe Haven Enterprise visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

In the specific case of [the applicant] I have considered the nature and seriousness of criminal conduct of which he was convicted of, namely intentionally sexually touch child >=10yrs &<16 yrs. Despite finding the likelihood of [the applicant] reoffending to be low, I have found the nature of this conduct to be very serious and place significant weight on this.

I find that significant weight should also be afforded to the Government’s views about the expectations of the community towards a finding that the national interest is enlivened in [the applicant’s] case.

I am aware that if a cancellation decision is made under s 501BA, [the applicant] will not be taken into detention, and he will continue to reside in the community.

Having regard to all of the above, I conclude that the use of my discretionary power to cancel [the applicant’s] Class XE Subclass 790 Safe Haven Enterprise visa is in the national interest.

58    I do not accept that the decision by the Minister to acknowledge (at SR [70]) that the legal consequences of a cancellation decision would be that the applicant would not be taken into detention or removed from the country in his consideration of the legal consequences of the decision rather than in his consideration of the community protection consideration (at SR [29]-[55]) and the community expectations consideration (at SR [56]-[59]) renders his earlier discrete consideration of those considerations illogical or irrational. Here the alleged illogicality and irrationality was a failure to have regard to the fact that the applicant would remain in the Australian community notwithstanding the cancellation decision. Once the Minister’s reasons are read as a whole, including his conclusion on the national interest consideration, it is readily apparent that he was acutely aware and had regard to the fact that the applicant would remain in the Australian community for the foreseeable future but not on a Safe Haven Visa. Rather, as the Minister stated at SR [70], he would determine the type of visa to be issued to the applicant and the conditions to be imposed on that visa after further advice from the Department of Home Affairs.

F.     Disposition

59    For the foregoing reasons, the application for judicial review is to be dismissed and the applicant is to pay the respondent’s costs as taxed or agreed.

Associate:

Dated:    22 January 2025