Federal Court of Australia

Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time within which the applicant may file an originating application for review of the decision of the respondent dated 18 June 2024 be extended to 24 July 2024.

2.    The originating application for review of a migration decision annexed to the application for an extension of time dated 24 July 2024 be treated as having been filed on 24 July 2024.

3.    The originating application for review of a migration decision be dismissed.

4.    The applicant pay the respondent’s costs of the proceedings, to be agreed or assessed.

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

REASONS FOR JUDGMENT

MCDONALD J

Introduction

1    The applicant, Steven Morgan, was born in Auckland, New Zealand in 1956. He has resided permanently in Australia since his arrival in 1977. Until April 2021, he held a Class TY Subclass 444 Special Category (Temporary) visa which had been granted in 2002.

2    On 8 April 2021, Mr Morgan was convicted of two counts of engaging in an indecent act with a child under 16 years of age in relation to offending that he committed between February 1997 and December 2000. For those offences he was sentenced to eight months’ imprisonment, the sentence being suspended after four months. Because the offences were “sexually based offences involving a child”, a consequence of Mr Morgan’s being convicted of them was that he did not pass the “character test” by reason of s 501(6)(e) of the Migration Act 1958 (Cth).

3    On 27 April 2021, Mr Morgan’s visa was cancelled by a delegate of a Minister, as required by s 501(3A) of the Migration Act. Mr Morgan made a request for revocation of the cancellation decision in accordance with s 501CA(3) of the Migration Act. On 25 November 2021, a delegate of a Minister declined to revoke the decision to cancel Mr Morgan’s visa. Mr Morgan sought merits review of that decision and, on 9 February 2022, the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the delegate.

4    Mr Morgan then applied to this Court for judicial review of the Tribunal’s decision. On 1 May 2023, Hespe J allowed the application for judicial review, quashed the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law: Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392.

5    On 5 September 2023, the Tribunal made a decision to exercise the power in s 501CA(4) to revoke the mandatory cancellation decision and directed, pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), that its decision come into operation on 6 September 2023.

6    On 5 June 2024, the respondent (Minister), acting personally, made a decision to set aside the Tribunal’s decision and to cancel Mr Morgan’s visa under s 501BA(2) of the Migration Act. It appears that Mr Morgan was informed of the Minister’s decision on 18 June 2024, and was taken into immigration detention on the same day. On 24 July 2024, Mr Morgan filed an application for an extension of time within which to apply for judicial review of that decision, annexing the originating application for judicial review on which he seeks to rely. On 15 August 2024, Downes J ordered that the application for an extension of time and, if time is extended, the originating application, be listed for hearing together.

7    The time within which to apply for judicial review should be extended. However, for the reasons explained below, Mr Morgan has not established that the Minister’s decision was affected by jurisdictional error. Accordingly, the application for judicial review will be dismissed with costs.

The application for an extension of time

8    Mr Morgan seeks an application for an extension of time within which to apply for judicial review of a migration decision. The extension of time required is very short. Although the Minister’s decision record indicates that the decision was made on 5 June 2024, the period of 35 days fixed by s 477A(1) of the Migration Act runs from “the date of the migration decision”, which is relevantly defined in s 477(3) to mean “the date of the written notice of the decision”. The written notice of the Minister’s decision was delivered by hand and is hand-dated 18 June 2024. It follows that that is “the date of the migration decision” for the purpose of s 477A(1), and that the last day on which the application for judicial review could be made within time was 23 July 2024.

9    The reasons for the delay in the making of the application are set out in an affidavit of Mr Morgan’s previous solicitor, Kathryn Smith, dated 24 July 2024. If an extension of time is not granted, a consequence will be that Mr Morgan will have no right of appeal against my decision: see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at 591 [17]; Federal Court of Australia Act 1976 (Cth), ss 20(3)(b), 24(1AA).

10    The Minister does not oppose the extension of time. The grounds of judicial review have been fully argued before me on their merits and are reasonably arguable. In all the circumstances, I am satisfied that it is necessary in the interests of justice to grant the extension of time.

The Minister’s decision

11    The Minister was provided with a submission from his department in relation to his consideration of the cancellation of Mr Morgan’s visa under s 501BA of the Migration Act. The submission stated on its face that the “Date of clearance” was 3 June 2024. I infer that the submission was provided to the Minister on or after 3 June 2024.

12    On the front page of the submission, the Minister was presented with several “options”, as follows:

After considering this submission and the attachments, please:

Indicate whether you wish to consider exercising your personal power unde[r] s 501BA to set aside the AAT’s decision and cancel the visa of Mr MORGAN because you are satisfied that he does not pass the character test and you a[re] satisfied that the cancellation is in the national interest.

a.     If yes, please indicate whether you wish to consider cancellation under s501BA with, or without offering Mr MORGAN an opportunity to provide information or comments (natural justice).

b.     If you wish to consider cancellation under s501BA with natural justice, note that a further submission will be prepared for you once that has been done and it is therefore not necessary to respond to the options below.

c.     If you choose to consider cancellation under s501BA without natural justice, please record your decision on and sign the decision page at Attachment 1. If you agree with the reasoning set out in the draft Statement of Reasons at Attachment 3, please also sign that statement, with any amendments you consider necessary.

(Emphasis in original.)

13    The Minister was provided with options to circle. By doing so, he indicated that he wished to consider exercising the power in s 501BA in Mr Morgan’s case; that he wished to consider cancellation without offering Mr Morgan the opportunity to provide information or comments; and that he had “noted” what would have happened had he indicated that he wished to consider cancelling Mr Morgan’s visa “with natural justice”. The options provided to the Minister in relation to the final paragraph were “Signed / not signed / please discuss”, and the Minister circled “Signed”. The Minister signed and dated the submission, recording the date as 5 June 2024.

14    Attachment 1 to the submission was the record of the Minister’s decision. The decision record identified three possible “Non-cancellation outcomes” (designated (a), (b) and (c)), and one “Cancellation outcome” (designated (d)). The Minister indicated that he had decided on the “Cancellation outcome” by circling “(d)”. The Minister completed the decision record by recording the date of his decision as 5 June 2024, the time as 9:30, the place as Canberra, and the total time taken considering the submission and its attachments as one hour and 45 minutes.

15    Attachment 3 to the submission was a statement of reasons for the Minister’s decision to set aside the decision of the Tribunal and cancel Mr Morgan’s visa. The Minister signed the reasons without making any changes to them, and recorded the date as 5 June 2024.

16    The reasons adopted by the Minister commenced by recording background information about the decision-making process up to that point. At [12]-[14], the reasons recorded and briefly explained the Minister’s satisfaction that Mr Morgan did not pass the character test because of the operation of s 501(6)(e) of the Migration Act.

17    Before [15] of the reasons appears the heading “NATIONAL INTEREST”. The formatting of headings in the reasons is not always consistent, but it appears from the use of capital letters and underlining that this was intended to be a high-level heading and that it was intended to cover what was written in [15]-[49]. This is confirmed by the fact that the subheading which appears before [47] of the reasons is “Conclusion on national interest considerations”, and by the fact that the reasons at [49] record the conclusion that “the use of my discretionary power to cancel [the visa] is in the national interest”. Before [50] of the reasons appears a new heading, “DISCRETION” (in capital letters but not underlined).

18    In the introduction to the section of the Minister’s reasons dealing with the national interest, it was noted that “national interest” is not defined for the purposes of the Migration Act, that the High Court had said in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 (Plaintiff S156) at 46 [40] that “What is in the national interest is largely a political question”, and that the Federal Court had held that “the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction”.

19    The Minister appears to have proceeded on the basis that there were two considerations which he regarded as relevant to the national interest in this case. The first, addressed at [19]-[42], was “Protection of the community”. The Minister first considered the seriousness of the criminal conduct of which Mr Morgan had been convicted, concluding at [28] that Mr Morgan’s offending was “very serious”. The Minister then assessed the risk to the Australian community. The Minister concluded at [41]-[42] that any further offending of the same kind had the potential to cause serious physical and/or psychological harm to members of the Australian community, and at [42] that, on balance, there was a low likelihood that Mr Morgan would reoffend. The Minister expressed his conclusion on this issue as follows:

I consider that the harm that would be caused if it were to be repeated is so serious that any risk that it could be repeated is unacceptable. I have given this consideration weight in support of cancellation being in the national interest.

20    The second consideration which the Minister evidently treated as relevant to his assessment of the national interest was the “[e]xpectations of the Australian community”. The crux of the Minister’s reasons appears from [44] of the reasons, which is in the following terms:

Cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, I consider that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of Mr MORGAN, those specified kinds of conduct include sexual offending against a child. Noting that Mr MORGAN has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applies in this case.

21    At [46] of the reasons, the Minister said of the expectations of the Australian community:

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

22    This paragraph suggests that the Minister specifically considered whether personal circumstances specific to Mr Morgan (other than the nature and seriousness of his criminal offending) were matters which he regarded as relevant to his assessment of the national interest. He appears to have made a conscious decision to regard those matters as relevant to the exercise of the discretion but not as themselves bearing on the national interest.

23    As already mentioned, the reasons contain a new high-level heading before [50], “DISCRETION”. In [50] of the reasons, the Minister stated that he “considered whether there were relevant considerations that might support a decision not to cancel [the visa] despite [his] satisfaction that it is in the national interest to do so”. At [51], he indicated that he had “given due weight to the matters discussed above under National Interest, but will rely on that discussion rather than repeat it here” and that, in addition, the Minister had taken into account “the following considerations”. The main additional considerations were identified under the subheadings “Best interests of minor children” (addressed in the reasons at [52]-[60]), “Ties to Australia” (addressed at [61]-[73]) and “Impediments if removed to New Zealand” (addressed at [75]-[78]).

24    Before [79] of the reasons appears the heading “CONCLUSION”. At [79]-[81], the Minister briefly summarised the main conclusions already reached. At [82] of the reasons, the Minister stated that he had “weighed up the above countervailing factors against the national interest considerations”. At [86], the reasons stated the Minister’s conclusion in the following terms:

I find that the considerations against cancellation are clearly outweighed by the national interest considerations in this case.

25    At [87], the reasons concluded by stating that the Minister had decided to exercise his discretion to set aside the Tribunal’s decision and to cancel Mr Morgan’s visa.

The application for review of the Minister’s decision

26    Mr Morgan seeks review of the Minister’s decision on two grounds. First, he contends that the Minister misunderstood the requirements of decision-making under s 501BA of the Migration Act by incorrectly dividing the power in that provision into an assessment of “national interest” considerations and “discretionary” considerations. Secondly, Mr Morgan contends that the power to cancel his visa was not available to the Minister because it was required to be exercised within a “reasonable time” and was exercised outside a reasonable time.

Ground 1 – Consideration of the national interest and suggested misunderstanding of the nature of the power

Principles applicable to s 501BA(2) and the Minister’s consideration of the national interest

27    As the Minister noted in his reasons, the High Court has stated that “[w]hat is in the national interest is largely a political question”: Plaintiff S156 at 46 [40]. As Gordon, Edelman, Steward and Gleeson JJ later pointed out in ENT19 v Minister for Home Affairs (2023) 278 CLR 75; [2023] HCA 18 (ENT19) at 108 [93], that was said in the context of “a personal non-delegable statutory power for the Minister to designate a regional processing country under the Act where the statute expressly stated that the ‘only condition’ for the exercise of the power was that ‘the Minister thinks that it is in the national interest’”. The reasons in ENT19 at 107-8 [91]-[92] support the view that the same observation is applicable to “personal Ministerial powers” under the Migration Act in which the Minister is required to consider whether they are satisfied that the making of a particular decision is “in the national interest”. The power in s 501BA(2) is appropriately characterised as a “personal Ministerial discretionary power exercisable in exceptional or specific circumstances”: cf ENT19 at 108 [92].

28    In connection with the personal ministerial power in s 501(3) of the Migration Act – another power the exercise of which was conditioned upon satisfaction of the Minister that cancellation of a visa was “in the national interest” – six members of the High Court in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at 30 [57], described the concept of the national interest as “broad and evaluative” but “not unbounded”.

29    In relation to the same power, the Court in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao) accepted that “in this particular statutory context, the expression ‘national interest’ is, like the expression ‘public interest’, one of considerable breadth and essentially involves a political question which was entrusted to the Minister” (at 390 [156]). The use of the expression “national interest” was said to import “a discretionary value judgment to be made by reference to undefined factual matters” (at 390 [156]-[157]). Further, the Full Court accepted the submission made by the Minister in that case that “it is a matter for the Minister to decide, on the merits of any particular case, what national interest factors are engaged in that case” (at 391 [158]). In support of the latter proposition, the Full Court cited Leiataua v Minister for Immigration and Citizenship (2012) 208 FCR 448; [2012] FCA 1427 (Leiataua) at 457 [21].

30    Leiataua involved consideration of a decision made under s 501A(2), another personal ministerial power conditioned on satisfaction that cancellation was in the national interest, this time a power to set aside a decision of a tribunal to grant a visa and, in lieu thereof, to decide that the grant of the visa should be refused. In that case, Jessup J observed (at 457 [21]) that “[g]iving content to the ‘national interest’ has been left by the terms of s 501A(2) to the Minister” and that, at least generally speaking, “to perceive in this very spare, high-level, statutory formula an implicit instruction to regard some unstated fact or circumstance as essential for consideration would … be problematic”. This view is consistent with the earlier statement of the Full Court in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at 353 [89], in connection with s 501A(2), that “[t]he question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained ‘reasonably’”.

31    There is no evident reason to suppose that the concept of the national interest used in s 501BA of the Migration Act is any different from the concept of the national interest that applies in relation to ss 501(3) and 501A(2). So much has been accepted by this Court in other cases involving review of decisions made under s 501BA, and the authorities referred to above have been applied in that context: see, eg, Anaki v Minister for Immigration and Border Protection [2018] FCA 77 at [12]; Gubbay v Minister for Home Affairs [2020] FCA 1417 (Gubbay) at [45]-[46]; Candemir v Minister for Home Affairs (2019) 268 FCR 1; [2019] FCAFC 33 at 5˗6 [20]-[21], 7 [24]; Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 (Palmer) at [43]-[44] (Derrington and Hespe JJ).

32    Consistently with the authorities on ss 501(3) and 501A(2), in Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at 403 [61], the Full Court considered that “s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA(2)”. Within the bounds of legal reasonableness, the factors that the Minister considered as bearing on his assessment of the national interest were for him to determine.

Did the Minister misunderstand the nature of the power in s 501BA(2)?

33    The Minister’s reasons correctly recognised that a precondition to the exercise of the power conferred on him by s 501BA(2) of the Migration Act was that he be satisfied that the cancellation of Mr Morgan’s visa was “in the national interest”.

34    Mr Morgan did not seek to characterise the Minister’s decision as legally unreasonable. In my view, it was not unreasonable for the Minister to decide to focus on the protection of the Australian community from the risk of harm posed by the commission of offences of the kind previously committed by Mr Morgan as the principal matter relevant to his assessment of the national interest. Nor was it unreasonable for the Minister to consider the practical effects of visa cancellation on Mr Morgan and his family as matters that were essentially personal to Mr Morgan, and to be taken into account in that way in the exercise of the discretion, rather than as matters themselves bearing on the Minister’s assessment of whether cancellation was in the national interest. That is not to say that the Minister might not lawfully have taken the alternative approach of regarding the effects of his potential decision on Australian citizens as also bearing on his assessment of the national interest; but he was not obliged to approach the conception of the national interest in that way.

35    For these reasons, I conclude that the Minister was not required to approach his decision-making task by making his assessment of whether cancellation of Mr Morgan’s visa was in the national interest in a way that took into account the matters which the Minister considered under the heading “DISCRETION” in [50]-[78] of the reasons. It was permissible for the Minister to treat those matters as relevant to the exercise of his discretionary power, without factoring them into his conclusion as to whether it was in the national interest to cancel the visa.

36    The fact that the Minister approached his consideration of the national interest by reference to the protection of the Australian community and the expectations of the Australian community does not demonstrate that the Minister proceeded on the understanding that it was not open to him to consider factors personal to Mr Morgan as potentially relevant to his assessment of the national interest. It is consistent with the Minister’s simply having formed a judgement about what factors he would consider relevant to the national interest and what factors, although not in his view informing the national interest, should nevertheless be taken into account when deciding whether to exercise the power conferred by s 501BA(2) of the Migration Act. The Minister’s reasons proceeded on the basis that, even though he did not take the matters that were personal to Mr Morgan and his family into account as part of his assessment of whether cancellation of the visa was in the national interest, those matters were nevertheless to be given consideration in deciding whether to exercise the discretion.

37    Mr Morgan submits that the Minister misunderstood the nature of the power conferred by s 501BA, in that “he wrongly bifurcated the power into an assessment of ‘national interest’ consideration and ‘discretionary’ considerations, and then weighed these against each other”.

38    I accept that the Minister’s reasons could be described as involving a “bifurcated” approach in the sense that the Minister evidently engaged in a sequential reasoning process, first identifying the factors that he considered relevant to the national interest and recording a conclusion as to whether cancellation of the visa was in the national interest based on his consideration of those factors, and then separately identifying additional matters, personal to Mr Morgan and his family, which he regarded as weighing against the cancellation of Mr Morgan’s visa.

39    In Graham, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said of the Minister’s reasons in that case (at 30 [58]):

The structure of the Minister’s reasons also reveals that the Minister treated his satisfaction that cancellation of the visa was in the national interest as the starting point for the consideration of the exercise of discretion, in each case going on to identify other considerations and to conclude that those other considerations were insufficient to outweigh the national interest in cancellation.

That is also an accurate way to describe what the Minister’s reasons reveal in the present case. The description of the Minister’s reasons in those terms in Graham does not seem to have been intended as a criticism of the approach, but nor was it argued in that case that that approach was impermissible. The two statements of reasons of the Minister that were considered by the Full Court in Carrascalao appear to have reflected the same approach: see, in particular, at 372 [81]-[82] and 373-4 [96]-[98].

40    I do not accept that Mr Morgan has established that the Minister, in approaching the matter in that way, misunderstood the statutory concept of the national interest or failed to give effect to it, or otherwise misunderstood the nature of the power he was exercising. Having concluded that the national interest considerations pointed in favour of cancellation and that the personal considerations identified pointed against cancellation, the language of weighing “the national interest considerations” against “the other discretionary considerations” was a fairly natural way to describe the Minister’s consideration of the exercise of the discretionary power and does not, in my view, demonstrate any error or misunderstanding of the power.

41    Mr Morgan submits that the Minister erred “by looking for a ‘national interest’ reason per se, when the Minister was required to look at the whole case and determine whether the national interest, looking at the whole case, requires cancellation”. As explained above, the Minister’s satisfaction that the cancellation of a visa is in the national interest is a precondition to the exercise of the power. The Minister was thus required to address the question of whether the cancellation of Mr Morgan’s visa was in the national interest. The authorities referred to above indicate that, subject to the constraints of legal reasonableness, it was for the Minister to decide what factors he regarded as relevant to the national interest. The authorities also establish that, even where the Minister finds that cancellation of a visa would be in the national interest, the decision is discretionary, in the sense that the Minister is not obliged to cancel the visa even if it is thought to be in the national interest to do so. In deciding whether to exercise the discretion in favour of cancellation, the Minister in this case did have regard to “the whole case” – that is, the factors he had considered relevant to assessing the national interest as well as the further factors which he identified as relevant to the exercise of the discretion.

42    To hold that the Minister was required to consider “the whole case” in deciding whether he was satisfied that cancellation of a visa was in the national interest would effectively be to import, as a consideration essential to the Minister’s assessment of the national interest, every matter to which the Minister decided to have regard in exercising the discretion. That would be inconsistent with the established position that it is generally for the Minister to decide what is relevant to the assessment of the national interest.

43    These conclusions are consistent with the reasoning of Reeves J in Gubbay at [54]-[60], where it was accepted that the determination of the factors to which the Minister might have regard in reaching his state of satisfaction was left to the Minister (acting reasonably) to determine, and that there was no error in the Minister considering the personal circumstances of the applicant in the exercise of his discretion rather than as a matter necessarily bearing on his conclusion as to the national interest.

44    Mr Morgan has not established that the Minister misunderstood the nature of the power he was exercising. The first ground of judicial review must be dismissed.

Ground 2 – Unreasonable delay in making the decision

Introduction

45    By his second ground of judicial review, Mr Morgan contends that the power in s 501BA(2) of the Migration Act can only be exercised within a reasonable time after the decision of the tribunal that the Minister is considering reversing. That limitation is said to arise by way of implication having regard to the context and purpose of s 501BA. Mr Morgan further contends that the Minister’s decision in his case was not made within a “reasonable time” after the decision of the Tribunal to revoke the cancellation of his visa.

46    Mr Morgan’s second ground of judicial review is similar to a ground which the appellant in DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63 (DOB18) sought to pursue for the first time in the Full Court: see at 659 [90] (Logan J), 676-8 [151]-[163], 683 [195] (Robertson J). In that case, leave to raise the ground based on alleged unreasonable delay was refused. Accordingly, the Full Court did not determine the ground on its merits.

47    A similar ground of judicial review was also relied upon by the applicant in Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24. In that case, Lee J held that there had been no unreasonable delay in the making of the Minister’s decision, and it was unnecessary for his Honour to decide whether, as a matter of statutory construction, the power in s 501BA(2) was subject to a limitation of the kind for which Mr Morgan now contends: at [53]-[61].

48    The Minister advanced three alternative submissions in answer to Mr Morgan’s argument.

(1)    The Minister contended that, on the proper construction of s 501BA of the Migration Act, there is no implied time limit within which any decision under s 501BA(2) must be made. That is, provided a delegate or tribunal had made a decision of the kind described in s 501BA(1) at any time in the past in respect of a particular non-citizen, the Minister could lawfully exercise the power in s 501BA(2) to set aside that decision and cancel the non-citizen’s visa, no matter how much time had passed since the decision of the delegate or the tribunal was made.

(2)    The Minister contended that, even if the s 501BA(2) power were required to be exercised within a reasonable time, and even if that requirement were not complied with (that is, even if an unreasonably long delay had occurred), the consequence was not that the s 501BA(2) power was “spent”. Rather, the Minister contended, the consequence was merely that a writ of mandamus might issue to compel the Minister to make a decision.

(3)    Even assuming that the power in s 501BA(2) could only be exercised within a reasonable time after the making of the relevant decision of a delegate or tribunal, the Court could not be satisfied that the Minister’s decision had not been made within a reasonable time in this case.

49    For the reasons that follow, I have concluded that, even if it be assumed that there is an implicit requirement that any exercise of the power conferred on the Minister by s 501BA(2) must occur within a reasonable time after the relevant decision of the delegate or the tribunal (after which the power can no longer be exercised), Mr Morgan has not established that the Minister’s decision in this case was made outside of a reasonable time, or that there was a delay of such magnitude in making the decision that it calls for explanation, in the sense of requiring that the Minister answer it by evidence.

50    In light of that conclusion, it will not be necessary to reach a concluded view in this case as to whether the power in s 501BA(2) is temporally limited in the manner for which Mr Morgan contends.

Mandamus is not available if the exercise of the power in s 501BA(2) is subject to a time limit of the kind for which Mr Morgan contends

51    It is convenient to begin by considering the second of the three arguments advanced by the Minister. Doing so assists in identifying the nature of the Minister’s decision-making function under s 501BA(2), and the nature of the implied limit on the power conferred by s 501BA(2) for which Mr Morgan contends.

52    The Minister submits that, even if the exercise of the power in s 501BA(2) were limited by a requirement that it be exercised within a reasonable time, the consequence would simply be that, once the period within which any decision ought to have been made had elapsed, the Minister could then be compelled by mandamus to make a decision. The Minister contends that the (only) appropriate remedy in the case of a failure to make a decision within a reasonable time is a writ of mandamus. This is similar to a submission that was advanced on behalf of the Minister in DOB18: see at 678 [161]. The Minister further submits that, since he has now made a decision under s 501BA(2) in Mr Morgan’s case (even if it was made outside “a reasonable time”), there is no longer any utility in the grant of a writ of mandamus.

53    For the reasons that follow, I do not accept the Minister’s submissions on this issue.

54    The function of a writ of mandamus is to compel the performance of a public duty: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at 347 [59], 358 [99]; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 595 (Brennan J); R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-9.

55    A statutory provision that requires an officer to exercise a power or perform a function will ordinarily be construed as imposing a duty which continues until it is validly or lawfully performed. Where a provision specifies a time period within which a power is to be exercised and if, after the expiration of the specified period, the duty remains unperformed, performance of the duty may become compellable by mandamus because the failure to make a decision within the time legally required by the statute may amount to a constructive failure to exercise jurisdiction: see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 at 394 (Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ). Put another way, the expiration of the time fixed for the performance of a duty will usually indicate that the time for its performance has arrived; not that the power to perform it has lapsed. The same is true where a provision imposes a duty which is required to be performed within a reasonable time (whether that requirement appears expressly or arises by way of presumption or implication). In cases like that, the appropriate remedy where there has been unreasonable delay will be mandamus to compel the performance of the duty.

56    However, s 501BA of the Migration Act does not impose any relevant duty on the Minister. In Palmer at 190 [163], after referring to the “dispensing powers” (being the powers conferred on the Minister by ss 46A, 195A and 351, and formerly by s 417, of the Migration Act), Feutrill J observed that the power conferred on the Minister by s 501BA(2) was in some respects analogous to the “dispensing powers”. Among other things, his Honour said the following, with which I agree:

… In the case of s 501BA(2), it is implicit that the Minister is under no duty to consider whether to exercise that power. Unlike the dispensing powers, there is no need to expressly qualify the power in s 501BA with a statement that the Minister is under no duty to consider exercising that power because there is virtually no likelihood that a non-citizen would request the Minister to exercise that power to cancel that person’s visa. …

57    The Minister is not under a duty to exercise the power in s 501BA(2), or to consider the exercise of the power. The Minister is not required to make a decision under s 501BA(2) within a particular timeframe, or at all. A visa holder who had succeeded in obtaining a revocation of the cancellation of their visa under s 501CA(4) would not be able to obtain a writ of mandamus, to require the Minister either to exercise the power in s 501BA(2) or to consider whether or not that power should be exercised.

58    The construction of s 501BA of the Migration Act for which Mr Morgan contends is not in the nature of a requirement that the performance of a duty be completed within a reasonable time. Rather, what he contends for is, in effect, an implied temporal limitation on the exercise of the power in s 501BA(2), such that the power to make a decision of the kind contemplated by that provision is no longer available to be exercised if the Minister does not make a decision to exercise it within a reasonable time. It is a limitation of the same general kind that was recognised by Dixon and Williams JJ in Koon Wing Lau v Calwell (1949) 80 CLR 533 (Koon Wing Lau).

59    Koon Wing Lau concerned the operation (and constitutional validity) of s 4 of the Immigration Act 1901 (Cth). Section 3 of that Act prohibited the immigration into the Commonwealth of certain classes of persons, but not a person who possessed a “certificate of exemption”. Section 4(4) provided that “[u]pon the expiration or cancellation of any such certificate”, the person named in the certificate, if found within the Commonwealth, might be declared by the Minister to be a prohibited immigrant and might be required, by notice in writing, to leave the Commonwealth within the period specified in the notice. Section 4(5) provided that, if the person failed to leave the Commonwealth within that period, they might be deported pursuant to an order made by the Minister. A question of construction that arose in Koon Wing Lau concerned the interpretation of the word “upon” in the expression “upon the expiration or cancellation of any such certificate”. Only Dixon and Williams JJ appear to have considered this issue of construction. The expression was interpreted as meaning “after, but within a reasonable time after” the expiration or cancellation of the certificate. Justice Dixon said (at 573-4):

The next question which arises is that already mentioned, whether after the expiration or cancellation of a certificate the Minister may, without any limitation of the time that elapses, at any date, however distant, act under sub-s (4) and make a declaration that the person is a prohibited immigrant and order his deportation. The word “upon,” in the expression “upon the expiration or cancellation” does not, I think, mean immediately upon and, as the Supreme Court of New South Wales has decided, it does mean “after”: Ex parte Lesiputty; Re Murphy [(1947) 47 SR (NSW) 433; 64 WN 113].

But, in accordance with the ordinary rule, that must be taken to mean within a reasonable time after the expiration and cancellation of the certificate of exemption. What is a reasonable time will depend upon all the facts, including the conduct of the person named in the certificate. It does not necessarily mean that by successfully evading the authorities for a long period of time, he can escape from the operation of sub-s (4). But the operation of sub-s (4) is limited to a reasonable time after the expiry or cancellation of the certificate.

60    Justice Williams said (at 590):

I agree with the Supreme Court in Lesiputty’s Case that “upon” means “after” but it does not, in my opinion, mean an indefinite time afterwards but within a reasonable time afterwards: Folkhard v Metropolitan Railway Co [(1873) LR 8 CP 470]. The Minister may make the declaration upon either the expiration or cancellation of the certificate. Presumably a certificate would not be cancelled except for good cause and with a view to a declaration being made. I think that the sub-section means that the declaration must be made immediately or within a reasonable time after the expiration or cancellation of the certificate.

(Citation omitted.)

61    Koon Wing Lau demonstrates that a provision which confers a decision-making power that is exercisable only if a particular event has occurred may, as a matter of statutory construction, be interpreted as requiring that the power may only be exercised within a reasonable period of time after the occurrence of the event that enlivens the power.

62    In support of his argument that any failure to make a decision within a reasonable time could be enforced by a writ of mandamus, the Minister relied upon the following passage from the judgment of White J in Sami v Commonwealth [2018] FCA 1991 (Sami) at [62]:

… But the remedy for a failure by an administrative decision-maker to make a decision within a reasonable time is usually an order for mandamus. There is no point to such an order in the present case because the Department did determine the application on 8 October 2003. A remedy on judicial review cannot alter the historical fact that the decision was not made until that time. In particular, it cannot operate to have the decision deemed to have been made at an earlier date …

63    The decision to which White J was referring in this passage was a decision to grant Mr Sami a visa. Mr Sami had made an application for a visa of a particular class, and a delegate of a Minister had considered whether to refuse to grant the visa pursuant to s 501(2) of the Migration Act, on the basis that he did not pass the character test. The delegate ultimately decided not to refuse the visa on that basis and Mr Sami was granted the visa. Mr Sami complained about the length of time taken to make that decision. Justice White pointed out that, at best, the delegate may have been under a duty to determine the visa application within a reasonable time, and that was the assumed premise underlying the passage on which the Minister relied. The important point for present purposes, however, is that, Mr Sami having made a valid application for a visa, the Minister was under a statutory duty to make a decision whether to grant or refuse to grant the visa: Migration Act, s 65. That distinguishes Sami from the present case, because the Minister is not under a duty to make a decision under s 501BA(2).

64    The Minister also referred to a passage in the judgment of Bromberg J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 (KDSP). In that case, the appellant had argued that the power in s 501A(2) to refuse to grant a visa was limited by a requirement that the power be exercised within a reasonable time. Justice Bromberg concluded that the visa refusal power in s 501A(2) was not limited in that way. His Honour said (at 31 [127]):

Such an implication may well have been available, if a person in the position of the appellant (whether or not such a person is in detention) had no capacity to obtain relief. However, an order of mandamus is available to rectify the failure of the Minister to discharge the s 65 duty within a reasonable time. The making of such an order would not only require the exercise of the s 501A(2) refusal power (if it is to be exercised) but would also address the primary source of the prejudice caused by any unreasonable delay — the failure of the Minister to either grant or refuse the visa.

65    There are some similarities between the power in s 501BA(2) of the Migration Act and the power conferred by s 501A(2). Both are “override” powers that enable the Minister to make a decision that is adverse to a non-citizen, in substitution for a favourable decision previously made by a delegate or tribunal. For that reason, cases that have considered Ministerial decision-making under s 501A(2) may be of some relevance in considering what constitutes a “reasonable time” or an “unreasonable delay” in the decision-making process.

66    Section 501A(2) empowers the Minister to act in connection with two kinds of decision, as identified in s 501A(1)(c) and (d). The first is a decision of a delegate or tribunal “not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person”. The second is a decision of a delegate or tribunal “not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person” (emphasis added).

67    Decision-making under s 501A(2) may occur in a context where the relevant non-citizen has made a valid application for a visa that is yet to be determined, and where there is an overarching duty on the Minister to make a decision on that visa application. That continuing overarching duty to make a decision on the visa application may support a conclusion that any step in the decision-making process (including any consideration of s 501A(1)(c) by the Minister personally) must be done within a reasonable time. Moreover, if the person is in immigration detention and the consideration of the visa application has the effect of extending the duration of that detention, any step in the process may have to be performed “as soon as reasonably practicable”: see Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at 232 [27]-[28], 233 [32]-[34].

68    In contrast, the power in s 501BA(2) will typically be considered in a context where it is not a step in an ongoing decision-making process in respect of which there is an ultimate duty to make a decision, and in circumstances where the non-citizen is not in detention pending the determination of such a process. It should not be assumed that observations made in relation to s 501A(1)(c) automatically translate to the context of decision-making under s 501BA(2).

69    The point made by Bromberg J in KDSP was that the power in s 501A(2), insofar as it relates to a decision to refuse a visa, occurred in the context of, and as a step in, the process of deciding a visa application. The Minister was under a duty to make a decision to grant or refuse to grant a visa. Mandamus was available to compel the Minister to exercise that overarching duty; if there was unreasonable delay, compliance with that duty would be compellable. As Bromberg J recognised, “very different contextual considerations” might arise in relation to the power in s 501(2) to cancel a visa. The same is true of the power in s 501BA(2).

70    If Mr Morgan’s construction of s 501BA is correct, then mandamus is not the appropriate remedy in the event that the Minister fails to make a decision within a reasonable time. The mere failure of the Minister to make a decision can give rise to no relief because the Minister is not obliged to make a decision under s 501BA(2), or to consider making such a decision, at all. On the other hand, if the power is limited in the way for which Mr Morgan contends, the making of a decision under s 501BA(2) after the expiration of the relevant time period would not involve the belated performance of a continuing duty but rather the purported exercise of a power that the Minister no longer then possessed. The appropriate relief in such a case would be certiorari to quash the purported decision, not mandamus.

The approach to assessing whether there has been a failure to make a decision within a reasonable time

71    I turn to consider the third of the arguments advanced by the Minister. The issue is whether the period of nine months that elapsed in the present case, between the date of the decision of the Tribunal and the making of the Minister’s decision under s 501BA(2), involved a failure to exercise the power within “a reasonable time”. For the purposes of considering this issue, I assume (without deciding) that s 501BA(2) is to be construed as subject to a temporal limitation of the kind for which Mr Morgan contends – that the power is only able to be exercised within “a reasonable time” after the decision of the delegate or tribunal which the Minister is considering overriding.

72    The question of what is a reasonable time depends partly on the nature of the power under consideration and the statutory context. The capacity of the statutory context to inform the concept of a reasonable time for the making of a decision was recognised by Bromberg J in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530, where his Honour said (at [25]):

Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.

73    In this passage, Bromberg J referred to circumstances where the Minister was subject to a “statutory duty”, and was referring to considerations that were relevant to ascertaining, as a matter of statutory construction, what should be regarded as “a reasonable time” for the performance of the duty. BMF16 involved delays in determining applications for citizenship under s 24 of the Australian Citizenship Act 2007 (Cth) and there was no doubt that the respondent in that case was under a statutory duty to determine those applications. As already discussed, s 501BA is not a provision that imposes a duty on the Minister. Nevertheless, on the assumption that s 501BA is to be construed as empowering the Minister only to make a decision under that section within a reasonable time of the relevant decision of a delegate or tribunal (as Mr Morgan contends), the kinds of considerations to which Bromberg J referred in the above passage will be relevant to ascertaining what should be regarded as a reasonable time for the exercise of the power.

74    In BMF16, Bromberg J said (at [29]):

The time taken to actively consider and assess an application for citizenship is unlikely to provide a foundation for a claim of unreasonable delay. But inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay. Thus, for instance, the unexplained failure of the decision-maker to take steps to request or obtain further information was a weighty consideration in Wei [v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455] (see at 476). The failure to provide an applicant with a timely interview was an important consideration in Oliveira [v Attorney General (Antigua and Barbuda) [2016] UKPC 24] (at [19]). In that case, the Privy Council considered that making allowance for “the customary way of doing things in Antigua”, in general and absent special considerations, the “outside limit of reasonable time” for the processing of a citizenship application was 12 months (at [42]). The Privy Council also recognised that special factors personal to the applicant can be taken into account in determining a reasonable time limit (at [45]). The hardship or personal consequences of a delay upon an applicant was also taken into account in Wei (at 477) and in Dragan at [56]-[57] (cf Thornton [v Repatriation Commission (1981) 35 ALR 485] at 493).

75    In AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27 (AQM18), Besanko and Thawley JJ said (at 434 [59]):

... As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning.

The delay in the present case is not such as to “call for an explanation”

76    As is apparent from the face of the submission and the decision record, the Minister received the submission from his department no earlier than 3 June 2024, and he made the decisions to consider the exercise of the power in s 501BA(2) and to exercise it by cancelling Mr Morgan’s visa, on 5 June 2024. There was no relevant delay on the part of the Minister personally in connection with the making of the decision once the submission had been “cleared”.

77    The question presented, therefore, is whether there is delay which calls for explanation in relation to the departmental processes that led to the Minister’s being provided with the submission, decision record and draft reasons. Apart from the limited inferences that can be drawn from the existence and nature of those documents, there is no evidence before the Court as to what those processes involved. Nor is there any evidence as to what human or other resources were available within the department to support those processes. These are matters about which the Minister was uniquely placed to provide evidence and thus about which it might naturally have been expected that he would adduce evidence.

78    On the other hand, Mr Morgan, who bears the onus of proving facts sufficient to establish jurisdictional error, has not adduced any evidence tending to establish, for example, that there was a lengthy period of inaction in the preparation of the submission relating to his case, or that other like cases were unreasonably prioritised ahead of his. While these matters might not naturally be within Mr Morgan’s knowledge, there are processes available by which applicants for judicial review may compel the production of information or documents from the Minister or the department that would tend to establish the basis for a submission that there had been a delay that calls for explanation. Mr Morgan did not pursue any of those processes, nor did he adduce any evidence about the process of decision-making, nor of any delay that may have occurred in the course of that process. The failure of Mr Morgan to adduce any evidence of what occurred within the department in relation to any particular delay or period of inaction, provides a limited foundation to assess whether any part of the time taken in the process leading up to the Minister’s decision was able to be reasonably justified.

79    Applying the approach identified in BMF16 and AQM18, the question is whether the elapse of a period of nine months after the Tribunal’s decision and before the provision of a submission and supporting documents to the Minister personally can be said to involve a delay of such a magnitude that it “calls for an explanation”, in the sense of being presumptively legally unreasonable, in circumstances where the evidence before the Court reveals little more than the bare facts that the Minister’s decision was made nine months after the decision of the Tribunal which it reversed and that the Minister personally made a decision very shortly after being provided with a submission from the department.

80    There is no evidence before the Court as to the reasons why a submission was not provided to the Minister until some nine months after the decision of the Tribunal. It is a period that is not insubstantial. However, having regard to the nature of the power, its place in the statutory scheme, and the undoubted existence of other competing powers, duties and functions of the Minister and the department under the Migration Act, in my view it is not such a long period that it “calls for an explanation”, in the sense that, in the absence of any specific evidence about the reasons for the delay, it should be assumed or inferred that there is no reasonable justification for the delay.

81    The power is one which is to be exercised by the Minister personally. It is one of a number of powers in the Migration Act that may be exercised by the Minister personally. The nature of the power in s 501BA is such that it generally arises for consideration in cases where the non-citizen concerned will have been released from immigration detention – and that was the case here. In contrast, other decision-making powers exercisable by Ministers and their delegates in connection with character-related visa cancellation and refusal often involve non-citizens who are detained, such that delays in those cases will prolong their detention. The Minister and the department may reasonably prioritise decision-making in those other kinds of cases. Additionally, there is a wide range of other functions to which Ministers and their departmental officers are required to attend (including making other decisions under the Migration Act), which the Minister and the department may reasonably regard as more deserving of priority.

82    A period of nine months for the department to provide the Minister with a submission and draft reasons in relation to the making of a personal decision concerning a character-related visa cancellation is longer than might generally be regarded as desirable, but it is certainly not outside the scope of ordinary experience. Although the actual time taken to prepare a submission to the Minister could not be expected to approach nine months, departmental staff must manage a file load, and the preparation of a submission and draft reasons for a ministerial decision will typically involve marshalling and analysing submissions and evidence. Changes in policy, judicial decisions and the availability of staff mean that backlogs can arise from time to time. There is no evidence in this case as to the number of submissions that are prepared for the Minister’s consideration, but it is apparent from recent decisions of this Court that the potential exercise of the power in s 501BA(2) (and analogous provisions) is brought to the attention of the Minister in a significant number of cases.

83    The nature of the power is such that there is a “need for the Minister to take considerable care in exercising the power” and it is recognised that “[i]n some cases, that may take some time to complete”: see KDSP at 50 [186] (O’Callaghan and Steward JJ), referring to the power in s 501A(2). The need for care extends to the work of departmental officers in preparing submissions and draft reasons for the consideration of the Minister.

84    In the end, I am not prepared to find on the balance of probabilities, as a matter of inference from the elapse of nine months and the failure of the Minister to adduce evidence explaining why the process has taken that long, that there has been any unreasonable delay or that the decision of the Minister was not made within a reasonable time. Mr Morgan has not established that the time taken exceeded “a reasonable time” and I am not prepared to draw an adverse inference against the Minister in the circumstances of this case.

85    I do not think it is profitable to attempt to identify a period of time that, in the absence of any other evidence about the process, should be regarded as long enough to “call for an explanation”. Any attempt to do so would be somewhat arbitrary, and I am also conscious that there is a risk that the actual length of the delay in this case might have an anchoring effect. The amount of time that would have to pass, between the decision of the delegate or the tribunal and the decision of the Minister, for an explanation to be called for may also depend on what else has been proven regarding the decision-making process in the particular case: an explanation from the Minister is more likely to be called for in a case where the applicant has taken at least some steps to obtain and adduce evidence of those processes and the evidence reveals unexplained periods of inaction, than in a case where the bare fact relied upon is the length of the period between the delegate’s or Tribunal’s decision and the Minister’s decision.

A further aspect of the argument advanced by Mr Morgan

86    Mr Morgan pointed out that one consequence of the elapse of time between the decisions of the Tribunal and the Minister was that, by the time of the Minister’s decision, Mr Morgan’s eldest son, T, was 18 years of age. As a result, the Minister did not identify T as one of Mr Morgan’s “minor children” and did not consider his interests in the part of the Minister’s reasons where he had regard to the “[b]est interests of minor children”. That is true, and it illustrates one way in which the elapse of time may alter the balance of discretionary considerations that the Minister may consider relevant to the exercise of the power in s 501BA(2).

87    Obviously enough, if time passes, some of the facts that the Minister may consider relevant to the exercise of the power in s 501BA(2), or the significance of certain facts, may change. In some cases, the elapse of a significant period of time may benefit the non-citizen (for example, in a case where the non-citizen spends time in the Australian community without committing further offences or other serious conduct and so is able to point to that as evidence of rehabilitation); in other cases, the elapse of time may operate to the non-citizen’s disadvantage. It is not clear how Mr Morgan seeks to deploy the circumstance that T had ceased to be a minor child by the time the Minister made his decision, beyond illustrating that the longer the period that elapses, the more likely it is that relevant facts, or their significance, may change.

88    In this case, the Minister did still have regard to the interests of T, but he did so in the part of his reasons where he considered Mr Morgan’s “ties to Australia” and, in particular, his “immediate family ties”. The Minister found that the strength, nature and duration of Mr Morgan’s ties to Australia as a whole weighed “very strongly against cancellation of the visa in this case”. In those circumstances, it is not clear that the Minister’s recognition that T was no longer a minor, when weighing up the competing considerations in making his decision, had any adverse consequence for Mr Morgan.

89    I do not regard the fact that T ceased to be a minor in the period between the Tribunal’s decision and the Minister’s decision as a factor tending to demonstrate that the Minister’s decision was not made within a reasonable time, even if the effect may have been that the Minister gave less weight to T’s interests in exercising his discretion.

It is unnecessary to determine whether s 501BA(2) is limited by a requirement that any decision be made within a reasonable time

90    For the above reasons, I do not consider that Mr Morgan has established that there was unreasonable delay in this case, or that the Minister’s decision was not made within a reasonable time, having regard to the nature of the power conferred by s 501BA of the Migration Act. It follows that it is unnecessary in this case to decide whether the power in s 501BA(2) is limited by a requirement that it be exercised within a reasonable time after the decision of a delegate or tribunal which the Minster’s decision overrides.

91    Irrespective of whether the Migration Act is to be construed as limiting the period in which the power in s 501BA(2) can be exercised, there are reasons why it will ordinarily be desirable that the Minister should consider any potential exercise of the power in s 501BA(2), and make any decision to exercise the power, fairly promptly after a decision of a delegate or tribunal which revokes the cancellation of a visa. If the Minister is to be satisfied that it is in the national interest for a non-citizen’s visa to be cancelled, it will usually also serve the national interest for that decision to be made expeditiously. And, from the point of view of good administration, the longer the time that passes, the more difficult it will be for the Minister to base their decision on accurate and current information, at least if reliance is placed only upon the evidence that was available at the time of the earlier decision of the delegate or tribunal.

92    From the point of view of the visa holder, the usual consequence of a decision revoking the cancellation of their visa will be that they are released from immigration detention into the community. Subject to the possibility of an exercise by the Minister of the power in s 501BA(2), the holder of a permanent visa may reasonably hope and expect that they will be free to re-establish themselves in the community and proceed with their life in Australia: see Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 at 274-5 [13]-[14] (Mortimer J). The re-cancellation of a non-citizen’s visa in the exercise of the s 501BA power may seem especially cruel to a person who has lived successfully in the community for a significant period after being released from prison and immigration detention, has re-established relationships, and has taken positive steps to avoid further offending.

Conclusion

93    For the reasons explained above, I would grant an extension of the time within which to apply for judicial review of the Minister’s decision. I would reject both grounds of judicial review. Accordingly, the application for judicial review must be dismissed with costs.

Associate:

Dated:    27 March 2025