Federal Court of Australia

CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision of the respondent dated 4 July 2024 setting aside the decision of the Administrative Appeals Tribunal given on 16 April 2024, with orders formally entered on 23 April 2024, and cancelling the applicant’s Resolution of Status (Class CD) (Subclass 851) visa under s 501BA of the Migration Act 1958 (Cth).

2.    The respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

OWENS J:

1    The applicant is a person in respect of whom Australia has protection obligations. He arrived in Australia in 1999 as a refugee from the Taliban regime in Afghanistan. His claimed fear of persecution on the ground of his race and religion (he is an ethnic Hazara and a Shi’a Muslim) if he were returned to Afghanistan was accepted by a delegate of the Minister for Immigration and Ethnic Affairs, and he was granted a Protection (Class XA) Temporary visa, on 5 January 2000. He held a succession of temporary visas until, on 27 May 2011, he was granted a Resolution of Status (Class CD) (Subclass 851) Permanent visa.

2    The applicant has a long history of mental illness, including having been diagnosed with schizophrenia. He has been admitted to psychiatric hospitals on many occasions, and has at times received involuntary treatment pursuant to the Mental Health Act 2007 (NSW). When he does not adhere to treatment with prescribed medication, he suffers from positive symptoms of psychosis (hallucinations, delusions, and disorganised thought) and demonstrates unusual behaviours.

3    When he does adhere to his prescribed treatment regime, his condition noticeably improves. For example, in February 2020 he was made subject to a “Community Treatment Order”, pursuant to s 51 of the Mental Health Act, which required him to accept treatment with anti-psychotic medication. While he remained compliant with his treatment, he did not display positive psychotic symptoms, and was easier to engage, although the effects of chronic mental illness on his organisational and cognitive abilities meant that he still did not have capacity to make decisions about his own interests and welfare. For that reason, on 2 October 2020 a guardianship order was made, giving the NSW Public Guardian custody of the applicant to the extent necessary to carry out specified functions, including making decisions for him about medical treatment and legal services. That order has been renewed several times and remains in force.

4    The connection between the applicant’s condition and his compliance with his treatment plan may further be observed in the events of September and October 2023. On 19 September 2023 the applicant was released into the community, having been in an immigration detention centre for eight years (I will return to the reason for that shortly). Less than one month later, on 13 October 2023, he was admitted to hospital following a relapse into acute psychosis. It appears that he had been released into the community with what the Public Guardian described as a “gravely inadequate” level of support and had disengaged with his treatment. It was only upon administration of anti-psychotic medication in hospital, and his discharge on a new Community Treatment Order, that his condition stabilised.

5    The applicant also has a long criminal history. Between 2002 and 2007 he was convicted on multiple occasions of offences including common assault, assault occasioning actual bodily harm, resisting officers in the execution of their duty, possession of prohibited drugs, property damage, and contravention of apprehended domestic violence orders. In 2007 he was convicted of using an offensive weapon with intent to commit an indictable offence (he fired a flare gun through a window, injuring an occupant of the house and starting several small fires). For that offence he was sentenced to four years’ imprisonment, with a non-parole period of two and a half years. He commenced reoffending upon his release from prison in 2011. His offending from that time until 2014 largely comprised the possession of prohibited drugs, carrying knives in public, and being in possession of goods suspected of being stolen.

6    Further serious criminal offending occurred in May 2014, for which he was convicted (following a guilty plea) of assault with act of indecency on 2 July 2015. He had been an involuntary inpatient at a psychiatric hospital. He entered the female bathrooms while another patient was inside, exposed his penis, and sought to have sex with her. When she refused, he assaulted her. When he was sentenced, the Court also took into account another offence with which the applicant was charged but not convicted (pursuant to Part 3, Division 3, of the Crimes (Sentencing Procedure) Act 1999 (NSW)), involving another assault on the same victim shortly afterwards. He was sentenced to 32 months’ imprisonment, with a non-parole period of 16 months. Because he had been remanded in custody since May 2014, that non-parole period expired in September 2015.

7    Having been sentenced to a term of imprisonment of 12 months or more, the applicant had a “substantial criminal record” within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth). That meant that he failed the “character test” in s 501(6)(a) of that Act, with the result that the then Minister for Immigration, Citizenship and Multicultural Affairs was obliged to cancel the applicant’s visa pursuant to s 501(3A). A delegate of the Minister did so, in a letter dated 24 August 2015 (and re-notified that decision, for reasons that don’t presently matter, in another letter dated 21 December 2021). As a consequence, when the applicant was released from prison on 9 September 2015, he was taken immediately into immigration detention.

8    He remained in an immigration detention centre for eight years until, as I have foreshadowed, on 19 September 2023, the Minister made a residence determination permitting the applicant to reside in the community subject to various conditions. That determination was made shortly after this Court made orders setting aside, and remitting, a decision of the Administrative Appeals Tribunal, in which the Tribunal had affirmed a decision made by a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa: CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050.

9    While the applicant was living in the community, the remitted proceedings in the Tribunal were decided in his favour, and on 16 April 2024 (with orders formally entered on 23 April 2024), the mandatory cancellation of his visa was revoked.

10    That decision was undoubtedly a positive development from the applicant’s point of view, even though he had not been at risk of being returned to an immigration detention centre if the mandatory cancellation of his visa remained in effect. That is because, in November 2023, the High Court delivered judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, holding that ss 189(1) and 196(1) of the Migration Act do not validly authorise the detention of a person for whom there is no real prospect of removal from Australia becoming practical in the reasonably foreseeable future. There is no dispute that the applicant is such a person.

11    Rather, the immediate practical consequence for the applicant of losing his visa had been that it made him ineligible for access to the National Disability Insurance Scheme. Amongst the requirements for access to the NDIS are the so-called “residence requirements” set out in s 23 of the National Disability Insurance Scheme Act 2013 (Cth). Relevantly to the applicant’s situation, it is only the holder of a permanent, and not a temporary, visa who is eligible for access to the NDIS (see s 23(1)(b)(ii)).

12    The evidence tendered in the Tribunal proceedings had included a letter from the Public Guardian stating that, if the applicant’s visa cancellation was revoked, they would make an application on his behalf to become a participant of the NDIS. Consistently with that stated intention, such an application was lodged on 3 May 2024.

13    On 4 July 2024, while determination of that application was still pending, the Minister exercised his power under s 501BA of the Migration Act to set aside the Tribunal’s decision and cancel the applicant’s visa. By the time the application to the NDIS was determined, the applicant was thus no longer eligible. On 20 September 2024, the National Disability Insurance Agency formally refused the application, with the sole reason supplied being that the applicant did not satisfy the residence requirements.

14    The applicant, in these proceedings, challenges the Minister’s decision to set aside the Tribunal’s decision and cancel his visa on three grounds (described below). The application is brought pursuant to the jurisdiction conferred on this Court by s 476A(1)(c) of the Migration Act (which is, pursuant to s 476A(2) of the Migration Act, the same as the jurisdiction of the High Court under s 75(v) of the Constitution).

THE MINISTER’S DECISION

15    The occasion for the exercise by the Minister of the power conferred by s 501BA of the Migration Act is the circumstance that either a Ministerial delegate, or the Tribunal, has made a decision under s 501CA to revoke the mandatory cancellation of a person’s visa pursuant to s 501(3A) consequent upon their failure of the character test.

16    In cases like this one, where there is no dispute that the person fails the character test, the discretion under s 501CA to revoke the mandatory cancellation is enlivened where the relevant decision-maker is satisfied that there is “another reason why the original decision should be revoked”: s 501CA(4)(b)(ii). Furthermore, in making a decision pursuant to s 501CA, a Ministerial delegate or the Tribunal is obliged to follow directions issued by the Minister pursuant to s 499 of the Migration Act. When the Tribunal made its decision to revoke the mandatory cancellation of the applicant’s visa, the relevant direction was “Direction no. 99”, which sets out a range of mandatory relevant considerations, and designates each as a “primary” or “other” consideration.

17    The Minister’s power under s 501BA is differently conditioned. Provided the Minister is satisfied that the person does not pass the character test, the Minister can set aside the decision under s 501CA and cancel the person’s visa if the Minister is “satisfied that the cancellation is in the national interest”: s 501BA(2)(b). The “national interest” is a broad and evaluative criterion (see, e.g., Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57], per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [156]-[157], per Griffiths, White and Bromwich JJ) and “[w]hat 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], per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. The authorities have made it clear that it is “largely for the Minister and not the Courts to determine what is and what is not in the national interest”: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAFC 195 at [137], per Besanko J. The exercise of the s 501BA power is, of course, still conditioned by a requirement it be exercised reasonably: CWY20 at [140], per Besanko J; Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 at [20], per Mortimer J, and [86], per Thomas J. That notwithstanding, the power under s 501BA remains “fundamentally different from that which is exercised under s 501CA”: Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at [61], per McKerracher, Markovic and SC Derrington JJ.

18    There are two features of the Minister’s decision here that assume significance in light of the way that the applicant puts his case.

19    First, the Minister did not read, let alone take into account, the reasoning of the Tribunal before making his decision. The relevance of the Tribunal’s decision to the Minister’s decision-making was limited to the fact that a decision under s 501CA to revoke the mandatory cancellation had been made, and thus that the fundamental condition for the exercise of the power under s 501BA was satisfied. It is this lack of regard to the Tribunal’s reasoning that is the crux of the first ground relied upon by the applicant in support of his application (described below).

20    Secondly, the Minister stated, in his statement of reasons, that he considered matters of national interest to “include, amongst other things, the protection of the community” (at [18]). The Minister went on to say, in further elaboration, or definition, of the concept of the protection of the community as it relates to the national interest (at [19]):

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

21    Ultimately, in relation to these topics, the Minister concluded that (at [54]):

Considering the nature and seriousness of [the applicant’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 [the applicant] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs significantly in favour of a finding that it is in the national interest to cancel [the applicant’s] visa.

22    There is no dispute that the Minister was entitled to consider the need to protect the Australian community as an important aspect of the national interest, nor that he was at liberty to define the relevant inquiry as directed fundamentally to an assessment of the risk of future offending and the consequences if that risk were to materialise. Other aspects of the Minister’s findings and reasoning on the topic of the protection of the community to which no challenge was directed included:

(a)    the conclusion that the applicant’s criminal conduct in Australia had been very serious (at [20]-[37]);

(b)    the finding that the harm that would be caused to members of the Australian community if the applicant reoffended is so serious that any risk that it could be repeated is unacceptable (at [51]);

(c)    the conclusion that of the various medical reports available to the Minister concerning the applicant’s mental health, he was entitled to prefer and act upon the report of Mr Guy Coffey, a clinical psychologist, dated 22 February 2024 (at [41]);

(d)    the finding (accepting Mr Coffey’s opinion) that “mental illness has been a contributor to [the applicant’s] offending” (at [44]);

(e)    the finding that while the applicant “has undertaken some treatment in the past relevant to his mental health” he “had not been compliant with his medication at all stages in the past”, and (accepting Mr Coffey’s opinion) the reasons his past treatment had not been consistent included “his reluctance to accept medication, his lack of understanding of his illness, and his chaotic lifestyle” (at [49]); and

(f)    the finding (accepting Mr Coffey’s opinion) that, in the absence of a highly structured program of risk mitigation, the applicant posed (at [52]):

(i)    a moderate to high risk of general recidivism; and

(ii)    a moderate risk of violent recidivism.

23    The uncontroversial aspects of the Minister’s decision can thus be summarised as a finding that the applicant poses an unacceptable risk of harm to the Australian community, and that the degree of risk he poses is increased in the absence of a highly structured program of risk mitigation directed to the management of his mental illness.

24    It is the reasoning that proceeded from that uncontroversial foundation that the second and third grounds of the application (described below) focus upon. In short:

(a)    The Minister accepted that the applicant is a person in respect of whom Australia has non-refoulement obligations, and thus a decision to cancel his visa would not result in his removal from Australia (at [81]-[85]);

(b)    The Minister acknowledged that the effect of the High Court’s decision in NZYQ was that a decision to cancel the applicant’s visa would not result in him being taken into immigration detention. It followed that, even if his visa was cancelled, the applicant would continue to reside in the community (at [86]-[88]);

(c)    The Minister said that he would “separately consider the type of visa on which [the applicant] should reside and conditions to be imposed on that visa, following further advice from the Department” (at [88]).

(d)    The Minister acknowledged that Mr Coffey’s opinion about the level of risk posed by the applicant was conditioned upon there being an absence of a highly structured program of risk mitigation. He (at [53]):

(i)    referred to the opinion of Mr Coffey as to the features of a comprehensive rehabilitation treatment plan, but said that there was no independent evidence that such a plan had been implemented, or that there had been a sustained period of compliance with it; and

(ii)    in relation to the submission that supports available through the NDIS will act as a protective factor, observed that there was “no evidence … that [the applicant] has met the criteria for access to the NDIS and that is a decision for another Commonwealth agency to make”. It was common ground that this statement should be interpreted as a finding that there was no evidence that the applicant had been accepted into the NDIS, and not as a finding that there was no evidence that the applicant meets as an objective matter (as opposed to the relevant decision-maker being satisfied he meets) the criteria for acceptance into the NDIS.

CONSIDERATION OF THE GROUNDS OF APPLICATION

25    The applicant challenges the Minister’s decision on three grounds. Each is expressed as a label of a category of jurisdictional error, supported by particulars which convey the substance of the complaint.

Ground 1

26    By his first ground, the applicant contends that the Minister’s decision is affected by jurisdictional error due to “a failure to consider a relevant consideration and/or legal unreasonableness”. The underlying complaint is that the Minister did not have regard to the Tribunal’s reasons for decision before he exercised his power to set that decision aside.

27    It was not in dispute that the Tribunal’s reasons were not before the Minister, but that the Minister could be taken to have known that the Tribunal would have given reasons for its decision and that those reasons could be made available to him on request. The evidence before me uncontroversially established that if the Minister had sought the Tribunal’s reasons they would have been promptly provided. The real dispute between the parties was whether having regard to the Tribunal’s reasons was a precondition to a decision within jurisdiction.

28    Both parties called in aid of their position a passage in the judgment of Mortimer J in Tereva v Minister, at [28], albeit emphasising different portions:

The power in s 501BA is an override power. While it takes as its jurisdictional precondition a favourable decision of the Tribunal, there is nothing in the text, context or purpose of the provision which supports an implication that the Minister is required to ‘rebut’ the reasoning of the Tribunal. Given the precondition, it may be an error for the Minister not to consider the Tribunal’s reasoning at all. However, the Minister’s power is differently conditioned, by the concept of the national interest, and there is no basis to import into the lawful exercise of that power a requirement that the Minister needs to refute the reasoning of the Tribunal. Indeed, this is a feature contributing to the draconian nature of the power. The Minister is empowered, subject to remaining within the boundaries of the concept of the ‘national interest’, and the boundaries of legal reasonableness and rationality, to simply take an entirely different view of the facts and circumstances to that taken by the Tribunal.

29    The applicant did not suggest that it was necessary for the Minister to “rebut” or “refute” the Tribunal’s reasons, but submitted that it was “an error for the Minister not to consider the Tribunal’s reasoning at all”. In part this submission was based on the words of s 501BA(2), namely, that the power conferred upon the Minister is a power to “set aside the [Tribunal’s] decision and cancel a visa”. It was said that the use of the conjunctive phrase was significant, in that the Minister was doing two things: he was not simply cancelling a visa, he was also setting aside the Tribunal’s decision. It must be necessary, it was submitted, to have regard to the reasons for a decision in order to exercise rationally a discretion to set it aside. Beyond that textual foundation, in addition, it was said to be inherent in the “override” nature of the power that there was a “prerequisite of at least understanding the basis for the decision” before acting.

30    The Minister, on the other hand, emphasised the fact that the s 501BA power is differently conditioned to that of s 501CA, submitting that it is “difficult to infer from the subject-matter, scope and purpose of a power that is exercised upon the Minister’s satisfaction of the national interest that the Minister must consider the reasons given by the Tribunal in making a decision under s 501CA(4)” (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 and Vargas v Minister at [61]).

31    The applicant further submitted that if I were not persuaded that consideration of the Tribunal’s reasons was a mandatory relevant consideration by reason of the nature of the power, I should find that in the particular circumstances of this case it was necessary for the Minister to have regard to them as an aspect of legally reasonable decision-making. It was emphasised that the concept of legal unreasonableness “is not confined to why a statutory decision is made; it extends to how a decision is made”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [91], per Gageler J; and see, in the context of s 501BA, Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 at [101], per Derrington and Hespe JJ, and at [158], per Feutrill J. The Minister submitted in response that there was nothing in the circumstances of this case that made it unreasonable for the Minister not to have regard to the Tribunal’s reasons, especially when regard was had to the “exceptional” (DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63 at [13]), “draconian” (Tereva at [14], per Mortimer J), and “extreme and largely unaccountable” (Tereva at [39], per Bromwich J) nature of the power being exercised, devoid of any obligation to afford natural justice (s 501BA(3)).

32    For the reasons that follow, I am not persuaded that the Tribunal’s reasons are a mandatory relevant consideration, or that in the circumstances of this case consideration of them was a necessary aspect of legally reasonable decision-making. That is not to say, as Mortimer J observed in Tereva, that a failure to consider the Tribunal’s reasons may not constitute an error in some contexts.

33    Insofar as the statutory language is concerned, I consider that the description of the power as being to “set aside the [Tribunal’s] decision and cancel a visa” should be read as identifying two aspects of the one power. The critical question for the Minister’s consideration is singular; namely, whether it is in the national interest that the state of affairs obtaining in consequence of the Tribunal’s decision should be reversed. Because it is no part of the Tribunal’s function to consider the national interest, and because the Minister’s discretion is relevantly enlivened by no consideration other than the national interest, the path by which, and the basis upon which, the Tribunal reached its conclusion are not inevitably relevant to the Minister’s decision. It is the state of affairs produced by the Tribunal’s decision that the Minister is required to consider against the national interest. It follows that when the Minister was considering whether to “set aside” the Tribunal’s decision, it was the result, and not the reasoning, that was in issue.

34    That same reasoning answers the broader submission that the exercise of an “override” power necessitates regard being paid to the reasoning of the decision being overridden. The power to override the Tribunal’s decision is not conditioned upon the Minister being satisfied of error in the reasoning or result of the Tribunal, nor even the Minister disagreeing with it. Because the criteria against which the respective decision-makers’ powers are to be exercised differ, it is perfectly possible that the Minister might agree entirely with the Tribunal’s reasoning and decision in the context of the basis upon which the power was required to be exercised. It is the fact that the Minister forms the view that the result is contrary to the national interest that enlivens the “override” power, and nothing more. Once more, what is being “overridden” is the result, quite independently of the reasoning that produced it.

35    I am conscious that, thus far, I have considered the potential relevance of the Tribunal’s reasons for decision in terms of their function as an explanation of the reasoning process by which the Tribunal came to the result it did in light of the criteria applicable to the exercise of its discretion. The Tribunal’s reasons may of course be relevant in other ways.

36    For example, in circumstances where the same facts are relevant to the decision of both the Tribunal and the Minister notwithstanding the different criteria applicable to each (and it might be expected that that would often be the case), the relevance of the Tribunal’s reasoning insofar as it relates to the ascertainment of those facts (including as to the resolution of conflicting evidence) could not be dismissed on precisely the same reasoning as that set out above. Nevertheless, it does not seem possible to me to conclude that that potential relevance of the Tribunal’s reasoning is capable of constituting the Tribunal’s reasons as a mandatory relevant consideration before there can be any decision within power.

37    The rules of natural justice do not apply to a decision under s 501BA (see sub-section (3)), and the Minister was entitled (within the bounds of legal reasonableness) to inform himself as he saw fit in relation to matters relevant to the national interest. Even where the Minister identifies as relevant to his decision the same factual issues that were regarded as relevant by the Tribunal, and proceeds upon the basis of the same evidence as was before the Tribunal, he is entitled to make his own assessment of that evidence, without any need to demonstrate error in the Tribunal’s process of fact-finding. In those circumstances, it does not seem possible to me to say that the subject-matter, scope, and purpose of the power conferred upon the Minister suggests that it can only validly be exercised if the Minister has had regard to what is, in effect, the opinion of the Tribunal regarding the factual findings supported by the evidence. In any event, it will not be an inevitable circumstance that the same factual matters will inform both the Minister’s assessment of the national interest, and the Tribunal’s decision.

38    A further potential relevance of the Tribunal’s reasoning is that it could be a source of information about the evidence and contentions relied upon by a visa applicant before the Tribunal. That evidence and those contentions may be relevant to the Minister’s assessment of the national interest. As Vargas v Minister at [62] makes clear, of course, that relevance would make that material a permissive factor bearing upon the Minister’s state of satisfaction, and would not, without more, go to jurisdiction.

39    The most obvious way that the “more” in any particular case may be supplied is through the requirement of legal reasonableness. That is, even though the rules of natural justice do not apply, and the Minister is entitled to inform himself as he sees fit in relation to matters relevant to the national interest, one can easily imagine a situation where, having identified particular considerations affecting the national interest in relation to an applicant’s visa in some specified way, the need to undertake a legally reasonable fact-finding process might compel the Minister to seek out evidence or information on particular topics: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [63], per Kenny J; Palmer v Minister at [101], per Derrington and Hespe JJ, and at [161], per Feutrill J. In such circumstances, the potential for error in failing to have regard to the Tribunal’s reasons may perhaps be present. It follows that while I do not consider that the Tribunal’s reasons would constitute a mandatory relevant consideration, I accept that in some circumstances it is possible that the requirements of legal reasonableness may require that they be considered.

40    In this particular case, the Minister had available to him all of the written evidence before, and the submissions made to, the Tribunal. To that extent, there was no reason why he would have needed to have regard to the Tribunal’s reasons. He did not, however, have before him in any form any information about the oral evidence and submissions in the Tribunal. Did that make a difference?

41    In light of the way in which the Minister approached his decision, I do not think it did. The findings of fact made by the Minister were consistent with (even if they did not extend as far as) the case propounded by the applicant before the Tribunal. Critically, the Minister accepted the opinions of Mr Coffey and the Public Guardian in the important respects identified earlier in these reasons. The Minister may not ultimately have made use of those opinions in the way for which the applicant contended, but that is a different question. Where, as here, the Minister has effectively accepted the factual basis of the applicant’s case (as opposed to, for example, resolving some ambiguity in written evidence which might have been clarified in oral evidence against the applicant, or relying on a gap in the evidence which may have been filled by the oral evidence), I do not think it can be said to be legally unreasonable not to have regard to additional material before the Tribunal (let alone, an indirect account of that additional material contained in the Tribunal’s reasons).

42    There was nothing in the way that the Minister approached his task, or in the findings he made, that made it unreasonable for him not to inform himself about the oral evidence and submissions made before the Tribunal.

43    Even if I am wrong about that, I am not satisfied that the oral evidence and submissions made to the Tribunal differed in a way that might have been material to the outcome of the Minister’s decision, even accepting that the materiality threshold is ultimately a relatively low bar (see MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [38]-[39], per Kiefel CJ, Gageler, Keane and Gleeson JJ, and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). The oral evidence and submissions did not contradict the written information that was before the Minister, and to the extent that it supplemented or augmented it, it did so in a way as to reinforce without materially developing the position already squarely advanced in writing. The Minister’s failure to make the findings and come to the conclusions for which the applicant had contended was, relevantly to the present issue, not because the Minister was not satisfied of any particular matter on the basis of the evidence before him, but rather because of the way that the Minister reasoned to his conclusion. I do not think that there is a material possibility that the Minister’s decision could have been affected by consideration of the oral evidence or submissions made to the Tribunal.

44    For these reasons, I am not persuaded that the applicant has made out ground one of his application.

Ground 2

45    The second ground asserts jurisdictional error in “failing to complete the fact-finding aspect of the exercise of power within the bounds of legal reasonableness” and in “failing to consider all relevant legal consequences of the decision, including that a cancellation decision would ensure the applicant could not qualify for the NDIS”. Those two characterisations were presented as complementary (and to an extent overlapping) components of the same fundamental error. That is to say, the applicant contended that the Minister fell into jurisdictional error:

(a)    in failing to make factual findings about the visa the applicant would reside on, and the nature of the risk he would pose on such a visa, in light of the support services to which he would have access; and

(b)    in failing to consider an important legal consequence of the cancellation of the visa, namely, that the applicant would become ineligible for the NDIS, which would in turn have significant implications for the risk he posed to the Australian community.

46    In turn, both of those characterisations represent an attempt to articulate the fundamental irrationality in the Minister’s decision for which the applicant contends. That is, it is contended that, having identified the protection of the Australian community as a fundamental aspect of the national interest, and having identified the risk of recidivism on the part of the applicant as the relevant threat to that community, the logical consequence of a cancellation of the applicant’s visa would seem to be to increase the risk of harm to the community, and yet the Minister found that “the need to protect the Australian community from criminal or other serious conduct weighs significantly in favour of a finding that it is in the national interest to cancel [the applicant’s] visa” (at [54], emphasis added).

47    It is important to emphasise that, consistently with the authorities to which I have referred above concerning the broad and evaluative nature of the “national interest” criterion, and its inherently political character, judicial supervision of the boundaries of the concept “does not involve … any second-guessing of the evaluation made by the decision-maker”: Tereva v Minister at [20], per Mortimer J. Nevertheless, “[a]lthough the Minister’s power to reach a state of satisfaction as to the national interest is a broad one, it is well established that it is not unconfined and that the minister must attain the state of satisfaction reasonably”: Acting Minister v CWY20 at [140], per Besanko J, citing Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at CLR 446-7, per Gummow and Hayne JJ, Graham at [57] and [59], per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 188 FCR 326; [2002] FCAFC 220 at [89], per French, O’Loughlin and Whitlam JJ; and Carrascalao at [158], per Griffiths, White and Bromwich JJ. The requirement of reasonableness is not, however, a vehicle for challenging a decision on the basis that the decision-maker “has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”: Minister v Li at [30], per French CJ. See also, generally, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11], per Allsop CJ, and at [62], per Griffiths J.

48    The first step in the applicant’s argument is the proposition that the Minister found that the applicant’s risk of recidivism was closely correlated with level of treatment and support he would receive for his mental illness. I do not understand this to be disputed by the Minister. The Minister accepted that mental illness had been a contributor to the applicant’s criminal offending generally, and that positive symptoms of psychosis accompanied his most serious offending (at [44]). Further, the Minister acknowledged that Mr Coffey’s opinions about the degree of risk of recidivism were conditioned upon there being an absence of a highly structured program of risk mitigation (at [53]). The relevant passage in Mr Coffey’s report that quantified the impact that such a program would have on the degree of risk of recidivism is as follows (at [135], emphasis added):

I have found that [the applicant] is at significant risk of re-offending unless criminogenic factors are addressed. In my opinion reduction of acute episodes of psychosis will significantly diminish, but will not eliminate, the likelihood of violent offending. The likelihood of violent or general offending will be further reduced by close supervision and support, and a comprehensive program of rehabilitation.

49    Of course, the Minister found that any risk of recidivism was unacceptable in light of the potential impact of the applicant’s criminal offending on members of the Australian community (at [51]). In circumstances where it was possible to remove the applicant from Australia, or place him in immigration detention, that finding may possibly have rendered irrelevant (or at least, less relevant) considerations relating to the potential to mitigate (but not eliminate) the risk of recidivism. But when, as the Minister found here, the applicant “will continue to reside in the community” even if his visa were to be cancelled (at [88]), the finding that even small increments in risk (“any risk”) are significant to the protection of the Australian community made ascertaining how the risk would vary according to the different potential outcomes of the decision a necessary step in any rational reasoning process.

50    The second step in the argument is that whether the applicant would receive an appropriate level of treatment and support for his mental illness depended on whether he was able to access the NDIS. That proposition may also be accepted. The evidence before the Minister included a letter from the Public Guardian dated 8 November 2023 which stated that the cancellation of the applicant’s visa had meant that the Public Guardian was unable to make appropriate applications for community support (by necessary implication, referring to the NDIS). The Public Guardian said that, if the visa cancellation was revoked, they would make an application on the applicant’s behalf that he be admitted to the NDIS, and outlined the range of services and supports that could then be provided to him so that he can “live safely and successfully in the community”. The Public Guardian’s letter stated that the support that the applicant had received outside the NDIS was “gravely inadequate”, and that they had concerns about the competence of the organisation that had provided it. On the evidence before the Minister, the only practical means by which the applicant could receive appropriate and effective treatment and support was through the NDIS.

51    The third step in the argument is that whether the applicant could access the NDIS depended critically on whether he had a permanent or a temporary visa. A person becomes a participant in the NDIS on the day that the Chief Executive Officer of the National Disability Insurance Agency decides that they meet the “access criteria” (NDIS Act, s 28(1)). A person “meets the access criteria” if the CEO is “satisfied” that they meet the various “requirements” identified in s 21(1) of the NDIS Act. One of those requirements is the “residence requirements”, which are defined in s 23. In accordance with that section, a person meets the residence requirements if they reside in Australia and are either (i) an Australian citizen, (ii) the holder of a permanent visa, or (iii) a special category visa holder who is a protected SCV holder. There is no dispute that the applicant does not satisfy (and has no reasonable prospect of satisfying) the first and last of those alternatives and thus that the only way in which he could meet the residence requirements is if he were the holder of a permanent visa.

52    There are of course other requirements for admission to the NDIS identified in s 21(1), relevantly, the “age requirements” and the “disability requirements” (defined in ss 22 and 24 respectively). There is no dispute that the applicant would meet the age requirements (in that he is under 65 years of age). There was evidence before the Minister that the applicant would meet the disability requirements (and no evidence that he would not). In particular, in letters dated 9 February 2022 and 11 January 2023, the Public Guardian recorded its understanding that, once he met the residence requirements, the applicant would meet the other requirements for access to the NDIS. In his report dated 22 February 2024, Mr Coffey recorded (at [126]-[127]) his reasons for believing that the applicant meets the disability requirements.

53    I have recorded above the Minister’s finding that he had “no evidence before [him] that [the applicant] has met the criteria for access to the NDIS and that is a decision for another Commonwealth agency to make” (at [53]), but that it was common ground that that statement should be interpreted only as a finding that there was no evidence that the applicant had already been accepted into the NDIS. That is to say, the Minister found (as was the fact) that the CEO had not decided that the applicant met (or did not meet) the access criteria. The Minister also correctly identified that the decision as to whether the applicant should be admitted to the NDIS was a decision reposed in another Commonwealth agency (namely, the National Disability Insurance Agency). The Minister made no finding as to whether, considered objectively, the applicant would (or would be likely to) satisfy the relevant criteria. As I have recorded, the only evidence before the Minister, was that the applicant would meet the disability requirements.

54    The fourth step in the argument is that there would be no permanent visa for which the applicant may be eligible if his Resolution of Status (Class CD) (Subclass 851) Permanent visa was cancelled. That fact was not in dispute. So, when the Minister said (at [88]), that he would “separately consider the type of visa on which [the applicant] should reside and conditions to be imposed on that visa, following further advice from the Department”, it was common ground that the universe of possible visas was comprised solely of temporary visas, none of which would permit access to the NDIS.

55    As I will explain, the combined effect of the matters articulated above is that, having identified the protection of the Australian community as a centrally relevant aspect of the national interest, and having identified the risk that the applicant would engage in further criminal conduct as the principal relevant threat to that community, the Minister failed to make the factual findings necessary to found a rational conclusion on the matters of national interest that he had identified. Viewed differently, he failed to consider the legal consequences of his decision as they related to the aspect of the national interest under consideration.

56    Having identified the risk posed by the applicant to the Australian community by reason of his potential recidivism as a critical aspect of the national interest, it was necessary for the Minister to make findings about those matters in reaching the requisite state of satisfaction under s 501BA(2)(b): LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [46], per Charlesworth J. On that self-determined premise, the Minister could not rationally determine whether cancellation was in the national interest or not (let alone the strength of the consideration) without making a finding as to whether the risk posed by the applicant would be increased or decreased if his visa was cancelled. That, in turn, necessarily required a finding about whether he would be eligible for support through the NDIS (which was itself a function of (a) whether the applicant would reside in the community on a permanent or temporary visa, and (b) whether he would otherwise meet the eligibility criteria).

57    It follows that the Minister failed to make the factual findings necessary to provide an intelligible justification for his decision:

(a)    Contrary to the applicant’s primary submission, it does not matter that the Minister did not make findings about the precise visa upon which the applicant would reside in the community, or the conditions that would attach to it. What matters is that he did not identify the critical feature of any visa that could be granted to the applicant if his existing visa was cancelled; namely, that they could only be temporary.

(b)    The Minister’s finding that the applicant had not yet been granted access to the NDIS was not sufficient to provide a legally reasonable foundation for his decision. The factual question that needed to be resolved is whether the applicant would be granted access to the NDIS, or at least the probability of that occurring. On the evidence before him, the only rational conclusion was that the applicant would be admitted to the NDIS if he resided in the community on a permanent visa, but could not be so admitted if he resided on a temporary visa.

(c)    Following on from the preceding two failures, the Minister failed to make any finding about whether the risk posed by the applicant to the Australian community would be increased or decreased if the applicant’s visa was cancelled. On the evidence before him, the only rational conclusion was that the applicant would pose a greater risk to the Australian community if the Minister cancelled his visa.

58    Without making findings about those matters, the Minister could not, within the bounds of legal reasonableness, determine the critical aspect of the national interest that he had identified: namely, the protection of the Australian community. The circumstance that, because of NZYQ, the applicant would reside in the community on either outcome of the Minister’s decision, fundamentally altered the context in which the assessment of the protection of the community needed to be considered. By stopping at the point of deciding that “any risk” of recidivism was unacceptable, and not going on to make the findings necessary to permit him to assess the relative risk the applicant would pose to the community on the alternative outcomes, the Minister failed to engage in a legally reasonable way with the issue he had himself raised for determination.

59    Those same failings can also be viewed as a failure by the Minister to consider the direct legal consequences of his decision.

60    It was uncontroversial that the Minister is required to consider the legal consequences of his decision: see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 at [9]-[10], per Allsop CJ and Katzmann J. So too that it is the “‘practical realities’ in ‘human terms’ of the legal consequences that are important rather than the legal consequences in the abstract”: Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [5], per Feutrill J. The Minister submitted, however, that it was only those consequences that can be described as “inevitable” (citing BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609; [2023] FCAFC 111 at [101], per Perry J, Bromwich and Kennett JJ agreeing) that need to be considered. The Minister submitted that the consequences identified above were not “inevitable” in the relevant sense.

61    I am satisfied that it was an inevitable consequence of any cancellation decision that both (a) no permanent visa option would thenceforth be open to the applicant and (b) he would, as a result, become ineligible for the NDIS. Each of those consequences flowed automatically, directly, and inevitably, by operation of statute, from the cancellation of his existing visa. Whether or not it was also “inevitable” that the applicant would be admitted to the NDIS does not seem to me to matter. The evidence before the Minister was uniformly to the effect that it was likely he would. The Minister’s finding that it was ultimately a decision for another Commonwealth agency cannot be construed as a rejection of that evidence. But in any event, at the very least, the failure to address the two clearly inevitable legal consequences of the decision I have accepted still meant that the Minister failed to take into account that one potential outcome of his decision guaranteed that the applicant could not access the NDIS, while the other left the possibility open. The inevitable legal consequences of his decision, even narrowly defined, thus had implications for the protection of the Australian community with which the Minister failed to engage. I find that that is enough, in combination with the findings in fact made by the Minister and the evidence accepted by him, to deprive his overall assessment of the national interest of the quality of legal reasonableness.

62    I am thus persuaded that the applicant should succeed on the second ground of his application.

Ground 3

63    The third ground upon which the applicant contends the Minister’s decision is vitiated by jurisdictional error is that it is afflicted by “legally unreasonable reasoning and findings”. The particulars in support of that ground located the relevant unreasonableness in the Minister’s findings about the absence of evidence as to the applicant meeting the criteria for access to the NDIS at [53] of his reasons, in circumstances where the Minister had determined not to seek updated information from the applicant or the National Disability Insurance Agency itself about “the status of the applicant’s foreshadowed NDIS application”. The applicant, while acknowledging that the Minister had no obligation to obtain more up to date information, submitted that “if that course is taken, a practical consequence may be that there is an absence of evidence (or at least a gap in the evidence)” which “may limit the reasoning processes that are reasonably open to the Minister” (quoting LJTZ v Minister at [100], per Charlesworth J).

64    I have already referred to the fact that it was common ground that the Minister’s finding at [53] of his reasons should be interpreted simply as a statement of the uncontroversial fact that the applicant had not yet been admitted to the NDIS. I have addressed the failure of the Minister to make findings concerning the impact of the outcome of the decision on the prospects of the applicant being admitted to the NDIS in connection with the applicant’s second ground. Beyond that, I confess to being uncertain as to what relevant information could have been supplied by either the applicant or the National Disability Insurance Agency in relation to the pending application.

65    In those circumstances, I am not persuaded that that the Minister’s decision not to seek up to date information produced any gap in the evidence that would operate to limit the reasoning processes available to him. The relevant gap in this connection was the failure to make the findings I have identified in relation to ground two. The absence of those findings was not, however, a product of the failure to seek updating information; the Minister had ample evidence before him upon which such findings could be made, and it is difficult to see how updating information could have assisted in any event.

66    In the result, I am not persuaded that ground three is made out; at the very least, not to any extent not already covered by ground two.

CONCLUSION

67    While I have rejected the first and third grounds upon which the applicant bases his application, I have upheld the second. A writ of certiorari will issue quashing the Minister’s decision. In addition, the applicant sought a writ of prohibition to restrain the Minister and any of his delegates, servants or agents from acting upon or giving effect to the Minister’s decision. It seems to me that certiorari alone is the appropriate writ to issue in circumstances where there is no suggestion that any person would seek to take any action based upon the decision once it has been set aside.

68    Neither party submitted that costs should not follow the event, and so the Minister should pay the applicant’s costs.

Associate:

Dated:    14 March 2025