Federal Court of Australia

Ibardaloza v Minister for Immigration and Multicultural Affairs [2025] FCA 356

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent's costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Mark Ibardaloza came to Australia in 1999 when he was 11 years old. In 2018, he was convicted of having caused grievous bodily harm in the course of an aggravated home burglary. He was sentenced to a term of imprisonment of 7 years and 6 months to be served concurrently with two other sentences imposed at the same time. His visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). He made representations to have the visa cancellation revoked. A delegate of the Minister refused to revoke the visa cancellation. Mr Ibardaloza sought merits review of the delegate's decision in the Administrative Appeals Tribunal. His application was successful and, having completed his term of imprisonment he was released into the community.

2    In September 2024, the Assistant Minister made a decision under s 501BA of the Migration Act to set aside the Tribunal's decision and cancel the visa that had been issued to Mr Ibardaloza who now seeks judicial review of the Assistant Minister's decision. The decision of the Assistant Minister is a decision of the Minister for the purposes of the Migration Act: Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [19]-[21] (Perry J). In these reasons, I will refer to the Assistant Minister as the Minister.

3    For the following reasons Mr Ibardaloza's application must be refused.

Section 501BA

4    The decision by the Minister relied upon the power conferred by s 501BA. It applies where a decision has been made under s 501CA to revoke a visa cancellation under s 501(3A). It was common ground that a decision of that kind had been made. Section 501BA(2) confers a personal power on the Minister to set aside a decision of that kind and cancel the visa if (a) the Minister is satisfied that the person does not pass the character test because of the operation of certain provisions; and (b) the Minister is satisfied that the cancellation is in the national interest.

5    In my reasons in Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 to be delivered at the same time as these reasons, I have explained the nature of the personal power conferred upon the Minister by s 501BA. After reviewing the relevant authorities, I have concluded that the following matters concerning s 501BA are established by the authorities:

(1)    the provision confers a discretionary power upon the Minister personally;

(2)    the matters stated in s 501BA(2) are pre-conditions that must be met before the power arises;

(3)    one pre-condition is that the Minister is satisfied that the cancellation of the person's visa is in the national interest;

(4)    the required state of satisfaction must be formed within the bounds of reasonableness and rationality;

(5)    the required state of satisfaction must be formed on the basis of a correct understanding of the law (particularly, a correct understanding of what is required by the pre-condition);

(6)    the formation of the required state of satisfaction involves the making of a broad evaluative judgment;

(7)    what is in the national interest for the purposes of the provision is largely a political question; and

(8)    the concept of the national interest is undoubtedly broad but is not unbounded.

The Minister's reasons

6    The Minister reasoned in the following way as to the exercise of the power under s 501BA in respect of Mr Ibardaloza:

(1)    Based on a national police check report, the Minister was satisfied that Mr Ibardaloza did not pass the character test (paras 11-13).

(2)    As to the national interest, the Minister stated 'I consider that matters of national interest include, amongst other things, protection of the community and the expectations of the Australian community' (para 17).

(3)    As to the protection of the Australian community, the Minister commenced his reasoning by stating (para 18):

In determining whether it is in the national interest to cancel Mr IBARDALOZA's visa, I have considered the need to protect the Australian community. In doing so, I considered the seriousness of Mr IBARDALOZA's criminal offending and other conduct, having regard to the circumstances and nature of the conduct, the likelihood of him reoffending or engaging in other serious conduct, and the risk he poses to the Australian community if such a likelihood eventuated.

(4)    The Minister considered the seriousness of Mr Ibardaloza's violent offending (paras 21-26) and concluded (paras 27-28):

I find that Mr IBARDALOZA's offending during the incident on 4 March 2017 to be plainly very serious, given the extremely violent nature of his conduct which involved the use of a weapon to inflict life-threatening and life-altering physical and psychological injuries upon the victim.

I note that the sentence Mr IBARDALOZA received is a further indication of the seriousness of his offending. Outcomes involving incarceration of the offender are the last resort in the sentencing hierarchy and I consider that the custodial sentence imposed in this case further reflect the very serious nature of the relevant offending.

(5)    The Minister then considered Mr Ibardaloza's other offending (paras 29-32) and concluded:

… I find Mr IBARDALOZA's other offending to be serious. In particular, it is concerning that Mr IBARDALOZA's criminal history involves repeated convictions for aggravated burglary offences he committed in 2007 and 2017, and features drug and alcohol related offences.

(6)    After referring to a false declaration provided by Mr Ibardaloza on an incoming passenger card (para 33), the Minister concluded that overall Mr Ibardaloza's 'criminal offending and other conduct is very serious' (para 34).

(7)    The Minister then considered the risk to the Australian community and concluded that 'any future offending of similar nature or seriousness would have the potential to cause serious physical and/or psychological injury and/or financial harm to members of the Australian community' and there was a particular concern that any further violent offending involving a weapon would risk 'life-threatening injuries or even death' (para 35).

(8)    The Minister went onto address the likelihood of Mr Ibardaloza reoffending in the future (paras 36-60) and reached the following conclusion (para 60):

I consider there to be a not insignificant or negligible likelihood that Mr IBARDALOZA will reoffend. In particular, whilst I acknowledge Mr IBARDALOZA's remorse and efforts toward rehabilitating his substance misuse, I find that Mr IBARDALOZA has not demonstrated he has made rehabilitation progress in relation to emotional regulation, responding to relationship challenges and/or problem solving. It is also unclear to what extent Mr IBARDALOZA has addressed his antisocial behaviours and negative peer associations. Given my conclusion above that if conduct of a similar nature were to be repeated, it has the potential to cause lifethreatening and/or life-altering physical and/or psychological injury to the direct victims of the offending and more broadly create fear in the minds of members of the Australian community with respect to their personal security and property, I find that Mr IBARDALOZA's risk of reoffending to be unacceptable to the Australian community.

(9)    The Minister then dealt with expectations of the Australian community (paras 63-66) and concluded:

… While I accept that certain members of the community may expect that greater leniency is afforded to non-citizens who have resided in Australia in their formative years, I am of the view that the broader Australian community's general expectations about non-citizens apply in this case. I have attributed this consideration significant weight towards a finding that it is in the national interest to cancel Mr IBARDALOZA's visa.

(10)    The Minister expressed his conclusion as to national interest considerations in the following terms (para 68):

In the specific case of Mr IBARDALOZA, I find that it is in the national interest to cancel his visa due to the very serious nature of Mr IBARDALOZA's conduct involving violence causing grievous bodily harm and life-threatening injuries, and my finding that there is an unacceptable risk that he would reoffend. I have also taken into consideration that the expectation of the Australian community that non-citizen must obey Australian laws while in Australia, and that in some cases such as this, the Australian community would expect a non-citizen not to continue hold a visa due to the concerns arising from the very serious nature of his or her offending.

(11)    The Minister then considered whether there were relevant considerations that might support a decision not to exercise the personal power to cancel Mr Ibardaloza's visa (paras 70-105) and concluded that there were matters that weighed against cancellation (paras 77, 88, 102).

(12)    The Minister then reasoned as to the way discretionary matters should be evaluated and concluded (para 112):

In this case, I consider that the national interest in protecting the Australian community is a key consideration. I find that the national interest considerations in this case outweighs the considerations against cancellation.

The review grounds

7    No issue arises as to the part of the Minister's reasons concerned with the character test. Three grounds of alleged jurisdictional error were advanced by Mr Ibardaloza concerning the Minister's state of satisfaction as to the pre-condition concerning the visa cancellation being in the national interest. Taking account of the way in which the grounds were expressed orally and the abandonment of the particulars to the second ground, I understand the three grounds to be to the following effect:

(1)    The Minister failed to, or did not adequately, consider certain probative material that was before him regarding Mr Ibardaloza's rehabilitation efforts when forming the view as to the risk of Mr Ibardaloza re-offending.

(2)    The Minister could not have given adequate consideration to the materials before him in the time that he spent deliberating and, consequently, there was a failure to undertake the deliberative task.

(3)    The Minister had no reasonable or rational basis to conclude that the circumstances of Mr Ibardaloza were so exceptional that it was in the national interest to cancel his visa.

Ground 1: alleged failure to consider

8    Respectfully, the particulars to ground 1 are somewhat difficult to follow but the written and oral submissions advanced in support of the ground dealt with the Minister's consideration of a report of a treatment program known as the 'Pathways' program and parole documents. It was said that there was a failure to consider those materials. Despite the oral submissions addressing other matters, ultimately it was made clear that the contention being advanced was 'that the Minister failed to consider all of the materials that were before him … [a]t an appropriate level and diligence'.

Pathways program report

9    While in custody, Mr Ibardaloza had completed the Pathways program, being a treatment program for offenders with co-occurring criminal conduct and substance abuse. As to the aspect of the Minister's reasoning that was concerned with the report of Mr Ibardaloza's completion of this program, reference was made in the report to the treatment needs and subsequent goals identified for Mr Ibardaloza as being in three areas (a) problematic substance abuse; (b) cognitive distortions; and (c) association with anti-social peers.

10    In the summary and recommendations at the end of the report it was recorded that Mr Ibardaloza completed all sessions of the program and presented as an active participant. The report identified treatment targets as including 'maintaining positive peer group associations, substance use issues, cognitive distortions and emotional/stress management'. It was said that Mr Ibardaloza 'exhibited a sound understanding of the content discussed, engaged in all aspects of the program and completed all written work'. The report said that when unsure Mr Ibardaloza did not hesitate to ask for assistance and had 'appeared to make treatment gains in his target areas'. It stated that his knowledge and skills were yet to be tested in a community setting and concluded by stating that he had completed all required treatment program recommendations.

11    The submissions for Mr Ibardaloza sought to characterise the conclusion reached in the report as stating that many if not all of Mr Ibardaloza's treatment needs had been addressed through his involvement in the Pathways program. The report reached no such conclusion. At its highest it indicated that there had been gains made, not that treatment needs had been addressed in some way that might require a particular conclusion about offending risk.

12    Further, the report was not the full extent of the material referred to by the Minister as to offending risk.

13    Issue was also taken with factual findings made later in the Minister's reasons (paras 53-55) on the basis that they failed to have proper regard to the report and were not correct when measured against its contents. Those findings were:

Further, I note that the majority of Mr IBARDALOZA's rehabilitative efforts appear to have been directed toward substance misuse. It is unclear to what extent Mr IBARDALOZA has addressed the other factors which have contributed to his offending, such as his antisocial behaviours and peer associations, emotional regulation and skills in responding to relationship difficulties.

…

Whilst I acknowledge that Mr IBARDALOZA has some understanding of how to respond to relationship challenges in the future and is clearly motivated by a desire to support his sons, I have some reservations as to whether Mr IBARDALOZA has realistically considered and developed skills for addressing difficulties and challenges in maintaining positive relationships, including for example, emotional regulation, decision making and problem solving strategies. I note also there is limited information from an appropriately qualified practitioner which explains Mr IBARDALOZA's progress toward addressing these factors. It is also unclear to what extent Mr IBARDALOZA has addressed his antisocial behaviours and associations with negative peer associations through his rehabilitation efforts to date.

14    These findings did not rest upon the consideration of the Pathways program alone, but were made after considering other material that was before the Minister, including evidence that Mr Ibardaloza had given about the extent of his treatment which dealt with many matters other than the report.

15    The submission made was, in effect, that due regard to the report would have led any reasonable person to conclude that many, if not all, of the treatment needs had been addressed through involvement in the Pathways program.

16    The submissions proceeded on a flawed understanding of the basis for the conclusions expressed at paras 53 and 55 which do not rest upon the report but on a considerable body of material referred to in the reasons and the Minister's view as to what may be concluded from that material. They also overstate the terms in which the conclusions were expressed in the report. The alleged deficiencies in the reasoning have not been demonstrated.

17    There has been no failure to consider the materials in the report and no demonstrated unreasonableness or illogicality in the Minister's reasoning having regard to the terms of the report and considering the other materials referred to by the Minister that might address aspects of the submissions which suggested there had been no proper regard to those materials.

Parole

18    In addition, reference was made in oral submissions to the parole order and its significance. It was said to demonstrate that Mr Ibardaloza 'was attempting to rehabilitate himself' and had made gains. However, the submission about the parole order was not otherwise developed in any significant respect.

19    The Minister's reasons made reference to parole and the plan Mr Ibardaloza had presented at the time of his application for parole 'in which he states his understanding of triggers for substance abuse relapse, the supports available to him and his strategies and practical skills for avoiding a relapse' (para 51).

20    The matters addressed at the time of parole were not overlooked or ignored by the Minister. It has not been demonstrated that there was a failure to consider those materials. Respects in which the reasoning as to parole and its significance might be said to be unreasonable or illogical were not demonstrated.

Conclusion

21    It has not been established that particular materials were not considered by the Minister. In substance, the submissions advanced for Mr Ibardaloza invited the Court to reach a different view to the Minister on the basis of those materials and thereby usurp the decision-making authority of the Minister. Whilst any attempt at merits review was disavowed that was precisely what was being attempted by ground 1.

22    No jurisdictional error has been demonstrated by ground 1.

Ground 2: alleged failure to undertake the deliberate task

23    The submissions advanced orally in support of ground 2 were to the following effect:

(1)    the Minister was directed to specific documents in his briefing note and he was required to give some consideration to those documents;

(2)    the Minister was obliged to consider, admittedly possibly at a high level, all of the documents that were provided to him;

(3)    because some of the documents were out of date, there were limitations on what the Minister could in fact find;

(4)    the materials before the Minister comprised some 675 pages;

(5)    the Minister recorded that he took an hour and a half to review the documents; and

(6)    it was pure fantasy to believe that the Minister could have reviewed the materials, at the required level of discipline, that were provided to him and to reach the conclusions that he did.

24    The matter stated at (3) can be put to one side. A submission of that kind would need to demonstrate why there was some illogicality or irrationality in the reasoning pathway of the Minister by reason of the lack of currency of information relied upon in the reasons. No attempt was made to articulate the foundation for a submission of that kind by reference to the mode of reasoning used by the Minister. The mere fact that the Pathways report had been obtained a number of years before the Minister's decision was an insufficient basis for the submission. Otherwise, the submission would need to address why there was some obligation to obtain up to date information even though there was an express provision that the rules of natural justice do not apply: see s 501BA(3). There was no submission of that kind either.

25    As to the other matters they reduce to the proposition that an hour and a half was insufficient time for the Minister to undertake the deliberative task required by s 501BA taking account of the extent of the materials and the fact that the briefing note directed him to those materials.

26    In Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11, the High Court considered what was required by the Minister when exercising a personal power. It was said at [18]-[19] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ):

When, as here, a Minister exercises a power personally, the law recognises that he or she does not work alone but makes decisions with the assistance of his or her department. The law treats the collective knowledge and experience of the department as the Minister's own knowledge and experience. …

The foregoing permits a Minister to rely on his or her department to sift and organise material received, to prepare summaries of information, and to prioritise correspondence. Generally, there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally. …

27    It was recognised that a specific provision may require more (at [25]). As to the specific power being exercised in that case (under s 501CA(4) of the Migration Act), it was said at [33]:

… it is not a condition of the valid exercise of the power conferred by s 501CA(4) for the Minister, when personally exercising that power, personally to read and examine the submissions, representations and other material received in every case. The Minister may rely instead upon departmental briefs and submissions which accurately summarise and order that material.

28    No submission was developed as to why such a conclusion would not apply to the power conferred by s 501BA which, as is explained in Moli, forms part of a suite of powers concerning circumstances in which a visa application may be refused or a visa cancelled on character grounds. As the premise for the submission was an obligation on the part of the Minister to review all of the materials and to consider them, possibly at a high level, or alternatively (it would seem) an obligation to read those documents to which the Minister was specifically directed and that premise is not established, the ground must fail.

Ground 3: exceptionality and the national interest

29    The submissions advanced in support of ground 3 were to the effect that the Minister could not have been satisfied that it was in the national interest to cancel Mr Ibardaloza's visa because 'something more' was required beyond the fact that there had been a failure to meet the character test. This was framed as a need for 'exceptionality'.

30    The submissions in support of the ground proceeded on the basis of a construction of the terms of s 501BA that there needs to be something exceptional about that which is said to be 'in the national interest'. For reasons given in Moli that approach to construction of the provision must be rejected.

31    It follows that ground 3 must fail.

Conclusion and orders

32    For reasons that have been given the application must be dismissed. It was accepted that costs must follow the event so there should be an order that the applicant pay the Minister's costs to be taxed if not agreed.

Associate:

Dated:    15 April 2025