Federal Court of Australia

GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue, directed to the Respondent, quashing the decision made on 21 June 2024 to set aside a decision of the Administrative Appeals Tribunal made on 30 October 2023 and cancel the Applicant’s visa purportedly under s 501BA of the Migration Act 1958 (Cth).

3.    The Respondent pay the Applicant’s costs, as taxed in default of agreement.

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

REASONS FOR JUDGMENT

BENNETT J

Introduction

1    The Applicant has applied for review of a decision of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) made personally pursuant to s 501BA(2) of the Migration Act 1958 (Cth) (the Migration Act). Under that provision, the Minister set aside a decision of the Administrative Appeals Tribunal (the AAT) and cancelled the Orphan Relative (Subclass 117) (Class AH) visa held by the Applicant.

2    The Applicant advanced six grounds of review, albeit grounds one and two were effectively combined, and ground three developed, in the course of submissions. In summary, they were:

(1)    Ground one: The Minister's state of satisfaction that the cancellation of the Applicant's visa was in the national interest was irrational, illogical, or unreasonable as it was based on irrational, illogical, or unreasonable reasoning.

(2)    Ground two: The exercise of the Minister's discretion to cancel the Applicant's visa was irrational, illogical, or unreasonable as it was based on irrational, illogical, or unreasonable reasoning.

(3)    Ground three: The Minister’s power in s 501BA(2) of the Migration Act was exercised unreasonably, because it was exercised without affording natural justice, in circumstances where there had been a significant passage of time between the most recent evidence on 18 August 2023 and the Minister’s decision on 21 June 2024.

(4)    Ground four: The Minister constructively failed to consider the legal consequence of his decision caused by the operation of s 197C of the Migration Act, because while he discussed the consequence of that provision, he did not explain how it fed into his deliberative process and ultimate decision.

(5)    Ground five: The Minister failed to consider the legal consequence of his decision caused by the operation of criterion 5001 of the “special return criteria”.

(6)    Ground six: The Minister’s power to make a decision under s 501BA of the Migration Act had expired because the decision was not made within a reasonable time.

3    For the reasons set out below, I accept that there was illogicality in the Minister’s decision which was material to the ultimate decision in the manner alleged in each of grounds one and two. Either ground would be sufficient for the decision to be set aside. I have separately concluded that even if that were not so, the third ground is established and this provides a separate basis for the decision to be set aside. The balance of the grounds have not been established. It is a matter for the Minister whether he decides to exercise his power afresh.

Background FACTS

4    GRCF is a young man from South Sudan. His exact birthdate is unknown, but it is given as 1 January 1995. He experienced violence during the civil war in South Sudan. His father died in tribal fighting when he was 7 or 8 years old, and his mother died by suspected suicide some time after taking him to a refugee camp. The Applicant applied for and was granted an Orphan Relative (Subclass 117) (Class AH) visa in July 2008, sponsored by his older brother, who had already migrated to Australia. He arrived in Australia in September 2008.

5    On 20 February 2019, the Applicant pleaded guilty to six charges, being robbery, theft, handling stolen goods, intentionally damage property, and two charges of possessing drugs of dependence. He was sentenced to a total effective sentence of five years and nine months’ imprisonment with a non-parole period of three and a half years.

6    On appeal, one count of possessing a drug of dependence was set aside. The Court of Appeal otherwise concluded that his sentence was manifestly excessive and in early 2020 re-sentenced him to a total effective sentence of four years and eight months with a non-parole period of two and a half years.

7    In May 2020, while the Applicant was serving a sentence of imprisonment, his visa was mandatorily cancelled under s 501(3A) of the Migration Act. The Applicant sought revocation of that cancellation decision. He was released from prison in mid-2022 before that request was decided. He was placed in immigration detention immediately upon his release.

8    On 7 August 2023 a delegate of the Minister under s 501CA refused to revoke the cancellation decision that had been made in 2020. The Minister’s decision was reviewed by the AAT. The AAT overturned that decision on 30 October 2023, and the Applicant’s visa was reinstated. The Applicant was released from detention.

9    The Applicant lived in the community for eight months following the AAT decision.

10    On 21 June 2024 the Minister, acting personally, cancelled the applicant’s visa under s 501BA of the Migration Act. The Minister decided not to grant procedural fairness to GRCF in coming to his decision, but took into account information previously provided by the Applicant in his visa cancellation process. The Applicant was placed in immigration detention shortly thereafter. The Applicant was granted a bridging visa on 29 November 2024 and has been living in the community since that time.

The Statutory Framework

11    This case is concerned with the decision made pursuant to s 501BA(2) of the Migration Act to cancel the Applicant’s Orphan Relative (Subclass 117) (Class AH) visa. Section 501BA(2) is an exceptional power which may only be exercised by the Minister personally (Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24 at [7] (Lee J) (Chapman)). The power in s 501BA(2) is an “override power”, discussed by Mortimer J (as her Honour then was) in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 (Tereva) at [10], [14].

12    At the relevant time, s 501BA applied if a delegate of the Minister or the AAT decided under s 501CA to revoke a decision made under s 501(3A) to cancel a visa. Where s 501BA applies, the Minister may cancel a visa if the terms of s 501BA(2) are established. Section 501BA(2) provides:

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

13    It was uncontroversial in this case that the Applicant did not pass the character test.

14    Section 501BA(3) makes clear that the rules of natural justice do not apply to a decision under s 501BA(2). The power conferred by s 501BA(2) must be exercised by the Minister personally (s 501BA(4)) and was, at the relevant time, not reviewable under Part 5 or 7 of the Migration Act (s 501BA(5)).

15    For the purposes of s 501BA(2) of the Act, identifying what is in the national interest involves a broad evaluative judgment (LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299; [2022] FCA 1209 (LJTZ) at [39] (Charlesworth J) and the cases cited therein). Where statutory powers, such as s 501BA(2) depend upon the formation of a state of satisfaction, there is an “implied requirement that the requisite state of satisfaction be reasonably formed” (LJTZ at [40] and the cases cited therein). Because the power is in the nature of an “override”, the Minister is not reviewing the decision of the AAT, and is not bound to take into account the same things that it considered relevant.

Appeal to this Court

16    This is an application for judicial review of the Minister’s decision to cancel the Applicant’s visa under the provisions set out above. To succeed, the Applicant must show that the Minister’s decision was affected by jurisdictional error (Migration Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). The High Court has identified two questions relevant in situations such as the present: has an error occurred; and, if so, was that error material (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at [9]).

17    In this case, the Minister concedes that one finding of the Minister that was part of his decision making was illogical or unreasonable. At issue in this case was whether or not the illogical step in the decision making process was material to the final outcome, such that the error was jurisdictional (LPDT at [7]).

Grounds one and two

18    Grounds one and two were argued together. By these grounds the Applicant argues that the Minister’s decision was illogical or unreasonable in different ways. To establish irrationality of the decision, it is necessary that the ultimate decision is irrational or illogical (Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [55] (Wigney J) as applied by the Full Court in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 at [35] (Charlesworth J, Flick and Perry JJ agreeing)).

19    Ground one focuses upon the Minister’s state of satisfaction that the cancellation of the Applicant’s visa was in the national interest. The second ground focuses upon his exercise of discretion having purported to be so satisfied. Both grounds attack the Minister’s reliance upon the Applicant’s lack of remorse for violent or aggressive incidents committed during his immigration detention. This lack of remorse was said to inform (in part) a risk that the Applicant would re-offend, which weighed in the balance of the Minister’s consideration of national interest and the exercise of the discretion. The Applicant asserts that it was illogical or irrational to rely upon this lack of remorse because it proceeded from the characterisation of the conduct by the Applicant’s lawyers making submissions in mitigation of sentence. In particular, the Applicant focuses upon the following statement in the Minister’s Statement of Reasons dated 21 June 2024 (Statement of Reasons):

the legal submissions provided by [GRCF’s] solicitors continually minimise his conduct in detention and attribute his violent and aggressive incidents as a product of the immigration detention environment (Attachments N, W, Y and AB). … [GRCF’s] continued minimisation of these incidents indicates little remorse for his serious conduct in immigration detention.

20    The Minister accepts that the material cited (attachments N, W, Y and AB) did not provide a factual basis for the finding extracted above about the minimisation of the Applicant’s conduct in detention. Therefore the Minister accepted the statement that “minimisation of these [immigration detention] incidents indicates little remorse for [GRCF’s] serious conduct in immigration detention” (the Remorse Findings) was irrational or illogical. The Minister submits that these findings, while erroneous, were not material to the final decision, so they do not rise to the level of jurisdictional error. In effect, the Minister submitted that the Remorse Findings were so minor, and so remote from the ultimate decision, that I can be satisfied that there could not reasonably have been any different outcome. The question was identified in LPDT at [14] as follows (citations omitted; original emphasis):

whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

21    A “realistically” different outcome, in this scenario, is to be distinguished from a “fanciful or improbable” possibility of a different outcome (LPDT at [14]). As the High Court observed in LPDT at [16]:

unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

22    Of course, not every lapse in logic will give rise to jurisdictional error (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ)).

23    I accept the Respondent’s contention that the Remorse Findings were relevant only to the issue of remorse for the Applicant’s conduct in detention. I also accept the Respondent’s observation that the Minister also made negative findings about the Applicant’s remorse in respect of his criminal offending, in the following terms at [38]-[39] of the Statement of Reasons:

However, [GRCF]’s own statements seek to explain his criminal offending in the context of his drug use and poor mental health, and that he feels he has had no chance to be himself in Australia, that he acknowledges his mistakes, and regrets that he has done nothing to make his parents proud Attachment L.

I consider that [GRCF]’s statements discuss the impact of his criminal offending chiefly in respect of the consequences on him, and he has expressed very little remorse for the impact his offending would have had on the victims, and the broader Australian community.

24    The Respondent submitted that the Minister did not refer to remorse in his conclusion regarding the Applicant’s risk to the community in the context of national interest. Rather, the Respondent submitted that in the conclusion on risk of reoffending the Minister appeared more swayed by the serious nature of the Applicant’s conduct and other matters. The Respondent suggested that, logically, this lack of reference indicated that remorse did not factor significantly in that conclusion (citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [37] (Gaudron J)). This submission is undermined by the Minister’s introductory statement regarding the Applicant’s risk of reoffending. In that context, the Minister explicitly linked the risk of reoffending to the Applicant’s sense of remorse. The Minister stated at [32]:

In assessing the likelihood of [GRCF] reoffending in the future, I have considered available information as to matters that may have contributed to [GRCF]’s past conduct, as well as indications of remorse and the extent of [GRCF]’s rehabilitation, including their more recent conduct in immigration detention, where relevant information is available.

25    Ultimately, it is not possible in this case to disentangle the reasons in the manner that the Respondent suggests. Moreover, it would be artificial to do so. The task undertaken by the Minister for the purposes of s 501BA(2)(b) is “broad and evaluative” in nature (Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 (Palmer) at [43] (Derrington and Hespe JJ), citing Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [57]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [156]-[157]). The Minister does not act as an automaton in carrying out their analysis.

26    The Remorse Findings were a positive conclusion that the Applicant was not remorseful for his conduct in immigration detention. In my view, this was a matter which constituted an element of some significance to the overall analysis. This is borne out by careful consideration of the Statement of Reasons. The Minister highlighted GRCF’s purportedly evident lack of remorse as a core part of his conclusion on the national interest in a manner that did not separate remorse for immigration detention conduct from remorse for criminal conduct. At the conclusion of the section on the national interest, the Minister said at [57] of the Statement of Reasons (emphasis added):

Conclusion on national interest considerations

…

In the specific case of [GRCF], I have had regard to the very serious nature of his offending; his serious conduct in immigration detention; his limited steps towards rehabilitation; and his lack of remorse. I have also had regard to the consideration of the protection of the Australian community, as well as the expectations of the Australian community, which I have found both weigh heavily in favour of a decision to cancel [GRCF’s] Class AH Subclass 117 Orphan Relative visa.

27    It is clear that the Minister took into account a range of factors in carrying out his analysis. A number of core issues were specifically identified in the concluding paragraph. Of all the matters analysed, six were specifically referred to. One of those was the Applicant’s “lack of remorse”. This must be read as incorporating the Remorse Findings. Those findings were therefore an important component in the conclusion on the national interest. This conclusion is fortified by the subsequent paragraph [58] which said (emphasis added):

Having regard to all of the above, I conclude that the use of my discretionary power to cancel [GRCF’s] Class AH Subclass 117 Orphan Relative visa is in the national interest.

28    The Remorse Findings are incorporated into the overall conclusion of the Minister on the national interest. The removal of the Remorse Findings could have altered the balance of the analysis because it consisted of a range of matters which were each evaluated in an impressionistic way.

29    Had this analysis been different so that the Minister concluded that it was not in the national interest to cancel the visa, then the visa cancellation would not have occurred. Given the relevance of the Remorse Findings to this conclusion, it must follow that there is a realistic possibility that the ultimate outcome could have been different had the error not been made. I reject the Minister’s contention that the Remorse Findings were not sufficiently important to, or were too remote from, the ultimate conclusion such that there was no realistic way that the result could have been different.

30    It is tempting to conclude that the seriousness of the criminal findings overshadow the balancing of the factors engaged in by the Minister. However, I bear steadily in mind that a reviewing court does not engage in a review of the merits of the decision. This was made clear by the High Court in LPDT (at [29]):

A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.

31    It follows that, having concluded that there is a realistic possibility that a different conclusion could have been reached on the national interest, I need not speculate about what the final decision would have been had the Minister been restricted to matters with a logical foundation. A realistic possibility is sufficient to establish the first ground. Given that the Minister’s discretion to exercise the power under s 501BA(2) would not be enlivened without that conclusion, the first ground is sufficient to establish jurisdictional error.

32    Although it is not necessary for my decision, I turn now to the second ground. The Minister correctly recognised that the power to cancel a visa under s 501BA is discretionary. That discretion having been enlivened by his conclusion on the national interest, he then considered other matters relevant to the decision not to cancel the visa. The Minister considered that a range of additional matters weighed against cancellation. Without being exhaustive, they included:

(1)    the best interests of children, including relatives of the Applicant who were minors (which was accorded “slight weight” against the cancellation of GRCF’s visa) (Statement of Reasons at [65]);

(2)    that the Applicant spent “some, but not a majority of his formative years in Australia” (which was accorded “some weight” against cancellation) (Statement of Reasons at [66]);

(3)    the strength, nature and duration of GRCF’s ties to Australia (finding that on balance, those factors weighed “strongly against” cancellation of the visa) (Statement of Reasons at [76]); and

(4)    impediments if GRCF was removed to South Sudan (this factor was given “significant weight” against cancellation of GRCF’s visa) (Statement of Reasons at [92]).

33    The Minister then accorded “very significant weight” to matters weighing in favour of cancellation, including the very serious nature of the crimes committed, and the harm to the Australian community should GRCF reoffend in a like manner in the future (Statement of Reasons at [96]).

34    The Minister made clear in considering his discretion that he gave “due weight to the matters discussed above under National Interest, but will rely on that discussion rather than repeat it here” (Statement of Reasons at [60]).

35    Therefore, on the face of the reasons, the factors that were weighed in the discretion in favour of cancellation included the matters that were explicitly referred to as part of the national interest considerations. As discussed above at [27]-[28], that included the Remorse Findings.

36    There were a greater number of factors considered as part of the discretion. The evaluative nature of the task makes it very difficult to speculate about how the removal of a particular factor, like the Remorse Findings, would have impacted the outcome. However, given the significance it was afforded in the national interest consideration, and the general relevance of remorse to the task being carried out by the Minister, I am satisfied that the evaluation could realistically have been different had the illogical reasoning been excluded. This is sufficient to establish the second ground.

Ground three

37    The third ground concerns whether the exercise of the Minister’s power in s 501BA(2) was unreasonable having regard to the passage of time between the most recent evidence – provided in the AAT’s hearing on 17-18 August 2023 – and the decision of the Minister on 21 June 2024, in circumstances where the Minister elected not to afford the Applicant procedural fairness.

38    Given the fundamental importance of procedural fairness to decisions which can affect individuals, Parliament must make an express and clear decision to exclude procedural fairness if it seeks to do so. It has done so in s 501BA(3). In Palmer, Derrington and Hespe JJ said at [47]:

There are no words of ambiguity or equivocation in s 501BA(3) which might indicate that the exercise of power under s 501BA(2) is subject to the rules of natural justice on some occasions or under certain circumstances. There are also no words indicating that the Minister has some Executive legislative power to create a requirement, either intentionally or unintentionally, that the power granted under s 501BA(2) be subject to the affording of natural justice to the visa holder. Moreover, there is nothing in the words of s 501BA(3) which invite the application of some judicial exegesis so that the freedom accorded to the Minister should be overridden and the subsection reformulated such that only on some occasions the rules of natural justice do not apply.

39    Parliament has made a choice to permit the Minister to make a decision without granting the visa holder opportunity to provide further information. Given the evaluative nature of the decision, which inherently involves consideration of a range of factors, many of which are expected to change over time, the express exclusion of procedural fairness must be taken to have contemplated potential changes in circumstances, such that the Minister is making a decision absent full information (Chapman at [68] (Lee J); see, in the context of s 501(3), EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 492; [2023] FCAFC 130 at [37] (Abraham, O’Sullivan and Raper JJ)). The construction for which the Applicant initially contended would require the Minister to afford procedural fairness if he apprehended that a factor could have changed in the time since he obtained information about it. This would, in my view, undermine the explicit exclusion of procedural fairness for which Parliament has provided. I do not accept it.

40    However, the Applicant also argued that the Minister’s analysis was being made on the basis that the factual situation at the time of the decision was the same as it had been 10 months earlier (the AAT decision was rendered eight months prior to the Minister’s decision, but the evidence was advanced two months earlier at the time of the AAT hearing). Proceeding on that basis was, according to the Applicant, unreasonable because it involved relying on facts which lacked an evidentiary foundation. The Applicant submitted that this characterisation of the third ground was available because he had referred explicitly to the unreasonable exercise of the power having regard to the passage of time between the AAT’s hearing and the Minister’s decision. The Minister did not, in the course of oral argument, suggest that this formulation of the third ground was not available. The Minister’s counsel engaged thoughtfully and carefully on the issue, and advanced helpful submissions about the metes and bounds of an unreasonableness argument of this kind. I proceed to consider it.

41    In LJTZ, Charlesworth J noted (at [48]):

The more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness. Much will depend on the inferences reasonably capable of being drawn about present day circumstances from the dated material.

42    With respect, I agree with the observations of Charlesworth J in LJTZ. Of course the present case is factually distinct from LJTZ. In that case the Minister had relied upon dated material while having before him up to date information (either actually or constructively) from the same source. In this case, the Minister did not have up-to-date information before him. This case does not concern inferences arising from the 10-month-old evidence: it concerns a conclusion by the Minister that a certain factual situation persisted, without considering whether the age of the evidence made it safe to so conclude. Put another way, the Applicant argued that the Minister proceeded on the basis that the information was up to date, when it was not. This is distinct from the Minister proceeding on the basis of information which he knows to have been accurate at an earlier point in time, but has chosen not to update.

43    The Minister submits that the threshold to establish unreasonableness through failing to afford an opportunity to be heard is “extraordinarily high”. I am not convinced that the analysis is assisted by appellations of that kind. I also observe that this is not a case – at least in the way submissions evolved – in which it is argued that the mere failure to provide procedural fairness was unreasonable. However, I accept that the legislative choice made to exclude procedural fairness carries with it a number of consequences, including the potential to proceed on the basis of incomplete information, and in the absence of factually relevant information which the affected person might otherwise be able to provide, including information that is more up to date (Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 (Kirk) at [13] (Charlesworth J)). As her Honour observed in Kirk (at [13]):

If it be within the scope of a power to proceed in an unfair fashion, it must follow that the resulting decision cannot be affected by legal unreasonableness merely by virtue of that unfairness. Expressed another way, the statutory intent to be discerned from [s 501BA(3)] is that the power in s [501BA(2)] can lawfully be exercised in a manner that is procedurally unfair. Unfairness of that kind is within the scope of the power.

44    As observed above, the way in which the Applicant’s argument evolved was to focus not on the alleged failure of procedural fairness per se; the issue that emerges is whether the Minister’s conclusions in the specific circumstances of this case were based on facts which, at the time of the decision, did not have a logical or reasonable basis. While I do not agree that the failure to update the information disclosed error, the manner in which the Minister used the information before him was an important issue.

45    The Minister said of the Applicant, that (Statement of Reasons at [43] and [46]):

“…despite [his] stated interest in addressing his PTSD as a root cause of his criminal and antisocial behaviour (Attachments L & X), I note that he has not continued seeking psychological treatment or counselling to address his mental health and psychological function.”

46    The Minister argued that I should read this statement as referring to the position of the Applicant at the time of the Tribunal’s decision. This is said to follow from the reference to attachments L and X, which were documents provided to the Tribunal. Moreover, it is said that the context in which the statement appears is about steps that had been previously taken to deal with the psychological wellbeing of the Applicant which were all before the Tribunal. There is some force in the Minister’s argument.

47    I accept that the Statement of Reasons refers to various matters relevant to remorse and rehabilitation over time: commencing with remorse connected with his criminal offending (at [37]-[39]) followed by consideration of his conduct in immigration detention (at [40]) and general comments about rehabilitation and engagement in different programs over time (at [41]) and his conduct while in immigration detention (at [42]). In paragraph [43], the Minister refers to the steps that the Applicant had taken in treating his psychological wellbeing. The Minister said that:

I have regard to his statements that while he was in prison he saw a psychologist once per month and took antidepressants for a few months before deciding to cease that medication (Attachment L). However, and despite [GRCF]’s stated interest in addressing his PTSD as a root cause of his criminal and antisocial behaviour (Attachments L & X), I note that he has not continued seeking psychological treatment or counselling to address his mental health and psychological function.

48    The Minister then set out some representations that the Applicant had made about his conduct in Immigration Detention (at [44]) and noted the steps that had been taken in treating his psychological wellbeing (at [45]).

49    The final paragraph under the heading “remorse and rehabilitation” returns to the question of PTSD as a root cause of his criminal offending. At this stage and in concluding on this issue, the Minister repeats the positive finding that “[GRCF] has not continued seeking psychological treatment or counselling to address his mental health and psychological function”. That conclusion is tied to the views of his treating psychologists as to the need for that treatment. However that does not render the finding historical. Grammatically and logically, that finding refers to the position at the time that the Minister’s decision was made. The importance of the comments was evident in the Minister’s conclusion about the Applicant’s remorse and rehabilitation, at [46] (emphasis added):

However, and despite [GRCF]’s stated interest in addressing his PTSD as a root cause of his criminal and antisocial behaviour (Attachments L & X), I note that he has not continued seeking psychological treatment or counselling to address his mental health and psychological function. Having regard to the views of Ms [REDACTED], Mr [REDACTED], and Dr [REDACTED] that [GRCF]’s risk of reoffending was directly related to addressing his underlying mental health issues, I consider that [GRCF] has taken only limited steps towards rehabilitation.

50    The Minister’s analysis purports to assess the Applicant’s steps towards rehabilitation at the time of the decision, proceeding on the basis that GRCF had continued not to seek psychological treatment or counselling to address his mental health and psychological functioning up to that date (the Rehabilitation Findings).

51    The Minister could lawfully have confined himself to incomplete information about the steps that GRCF had taken to seek psychological treatment and counselling. Any logical conclusion or inference arising from the fact that he had not, prior to the date of the relevant evidence, sought such assistance, was open to the Minister. However, a plain reading of the Statement of Reasons makes clear that is not what occurred. Instead, the Minister proceeded on the positive basis that the position as it was 10 months earlier persisted at the time of his decision.

52    Overall, a fair reading of the Minister’s Statement of Reasons at [43] and particularly at [46] is that he considered that the attitude of the Applicant to psychological treatment or counselling up to the time of the decision had remained the same since evidence on that question was given 10 months earlier. The Minister clearly considered that circumstance to be adverse to the Applicant. However, the Minister had no evidence before him of anything in the preceding 10 months: his statements that the Applicant had “…not continued seeking psychological treatment” and “has taken only limited steps towards rehabilitation” were lacking in an evidentiary foundation. Nor did the Minister refer to any evidence that would constitute a logical basis to infer that the Applicant had not sought that treatment in the 10 months immediately preceding his decision. In this respect, the Minister fell into error. For the reasons set out above in relation to the broad and evaluative nature of the Minister’s power, I am satisfied that the error was material.

53    In LJTZ, her Honour observed that while it is permissible for the Minister to exercise power without first affording the visa holder an opportunity to be heard, there is a practical consequence of that decision (at [100]):

... [it] may be that there is an absence of evidence (or at least a gap in the evidence) bearing on a topic the Minister considers to be relevant. That absence or gap may limit the reasoning processes that are reasonably open to the Minister. For example, it may not be permissible (that is, within the bounds of legal reasonableness) for the Minister to proceed as though he has before him everything the applicant may have to say on the topic to the present day. It may not be permissible in the requisite sense to draw inferences about a current state of affairs by reference to an earlier state of affairs. It may not be logical to draw a positive inference that an event has not occurred merely by reference to the absence of evidence as to whether or not it has in fact occurred.

54    This is such a case. In making the Rehabilitation Findings, the Minister has stepped outside the bounds of logical reasoning and proceeded without evidence to reach an impermissible conclusion about the current status of GRCF’s rehabilitation and his current attitude towards rehabilitation at the time of the decision.

55    There were other examples of the Minister’s reasoning that the Applicant relied upon. I do not agree that these examples identify an error of the kind I have identified in relation to the Rehabilitation Findings.

56    For instance, the Applicant also relied upon the Minister’s statement at [64] that:

Although I accept [GRCF’s sister’s] statements that a non-cancellation decision would be in the best interests of her children, I find that [GRCF’s sister’s] children, and [GRCF’s brother’s] children, are primarily cared for by their parents, there is limited evidence of [GRCF’s] relationship with those children, the children do not appear to have regular contact with [GRCF] and this appears unlikely to change.

57    The analysis at [64] is specifically anchored in the evidence before the Minister. Implicitly this involves an analysis of the evidence at the time it was proffered, being 10 months earlier. The reference to the position being “unlikely to change” is a reference to the Minister looking forward from the time that there is evidence and inferring matters about the present in a logical manner. I accept that there is some force in the argument that in the ordinary course it would be preferable for the Minister to seek information to verify this inference, given that it is possible to do so. However, Parliament has granted a specific power under s 501BA to the Minister not to seek evidence from the Applicant about matters adverse to him, which has the consequences I have outlined above. In this instance, the Minister has not extrapolated impermissibly from the evidence: he has reached a conclusion based on evidence at a certain point in time. This may be contrasted with the findings at paragraphs [43] and [46] of the Statement of Reasons which reach a conclusion about the present status of the Applicant’s attempts to seek rehabilitation, for which there could be no basis in the absence of updated information.

58    The Applicant argues that [74]-[75] of the Statement of Reasons likewise demonstrate that the Minister impermissibly extrapolated from the position 10 months earlier. Those paragraphs provide:

I note that [GRCF] was involved in sport during his school years, including a multicultural AFL league (Attachment L). I have also had regard to the periods of employment reported by [GRCF] (Attachment F). I accept that, due to the length of time in which [GRCF] has resided in Australia he will doubtless have formed other social and community ties to the Australian community.

However I also note that due to [GRCF’s] persistent and repetitive offending which commenced as a juvenile, of the approximately 16 years that [GRCF] has resided in Australia, he has been in youth justice, prison, or immigration detention for a majority of that time. As such, I consider his positive contribution to the community to be limited beyond the scope of his immediate family.

59    The Minister again refers to the time periods relevant to his analysis, and reaches his conclusion based on those time periods. There is no suggestion that he has made assumptions about what the Applicant has (or has not) done in the intervening 10 months. He has proceeded on the basis that the information that he has is incomplete, a permissible form of reasoning as a consequence of the legislative choice I have analysed above.

60    There is, of course, the possibility that the Applicant has made additional contributions to the community in the past 10 months which the Minister could have validly taken into account. That may be so, but it does not evince error. It is important that reasons are not to be read with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ)). A fair reading of the Minister’s reasons does not lead to the conclusion that there has been impermissible extrapolation in this instance. The Minister has instead proceeded on the basis of incomplete information. That approach is valid, and can be contrasted with the Rehabilitation Findings, where the Minister made positive findings about the attitude and actions of the Applicant at the date of the decision, when no evidence was available to support that conclusion.

61    Ground three is therefore established by reason of the Rehabilitation Findings.

Ground four

62    By ground four the Applicant alleges that the Minister constructively failed to consider the legal consequence of his decision caused by the operation of s 197C of the Migration Act.

63    It has been accepted by this Court that the legal consequence of a decision is a mandatory consideration (NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) at [10] (Allsop CJ and Katzmann J)).

64    The Applicant refers to the species of error, discussed by the Full Court in Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140 (Lafu) at [47]-[53] (Lindgren, Rares and Foster JJ), that a failure to “genuinely take into account” a mandatory consideration (such as the legal consequences of an action) may mean that there has been no requisite consideration. The Applicant submits that a reader of reasons should not be “left to guess what role, if any”, the consideration played (Lafu at [49]).

65    The impugned paragraphs of the Statement of Reasons read as follows:

77.    I am aware that under s198 unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention under s189 provided that removal is practicable in the reasonably foreseeable future, noting also that s197C(1) provides that, for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.

78.     However s197C(3) provides that s198 does not require or authorise removal of a person to a country in relation to which a ‘protection finding’ has been made in the course of considering a protection visa application by the person, except in the circumstances set out in s197C(3)(c).

79.     A ‘protection finding’, as defined for the purpose of s197C(3) of the Act, made in the course of considering a protection visa application from a non-citizen, means that Australia will not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The Act, in particular the concept of ‘protection obligations’, reflects Australia’s interpretation of its non-refoulement obligations and the scope of such obligations that Australia is committed to implementing.

80.    If relevant circumstances change, a reassessment of a protection finding can be made under s197D. A decision that the person was no longer a person in respect of whom a protection finding would mean that the person no longer engaged Australia’s non refoulement obligations

81.    I have considered [GRCF’s] claims that he would face harm as an ethnic Dinka due to ethnic violence and as a returnee from a Western country with no family or social support he may be targeted due to perceived wealth. He has also raised fears that he will be forcibly recruited into the military and harmed or killed if he resists. The AAT accepted there was a likelihood of these harms occurring however noted it was open to [GRCF] to apply for a protection visa

Attachment G.

82.    I accept that the nature of the claims outlined above indicates a potential for Australia’s international non-refoulement obligations to be engaged in relation to [GRCF].

83.     It is open to [GRCF] to make an application for a Protection visa. During the processing of any such application, [GRCF’s] claims regarding Australia’s non-refoulement obligations would be fully assessed.

66    The Applicant accepts that the legal consequences of the decision, being the requirement to remove the Applicant notwithstanding Australia’s non-refoulement obligations, were mentioned, but argues that the passages in which they were discussed did not explain how the consideration was brought to bear and fed into the deliberative process.

67    The Minister noted that s 197C(1) of the Migration Act had the effect that, for the purpose of s 198, it was not relevant whether Australia had non-refoulement obligations in respect of the Applicant. The Minister was therefore aware that the Applicant would be returned to South Sudan if his visa was cancelled, absent a protection finding, and would be detained in the meantime. Moreover, the Minister observed that the claims raised by the Applicant served as significant impediments that would have a very negative impact on the Applicant should he be returned to South Sudan. The Minister recognised that the Applicant’s fear in relation to his possible future treatment in South Sudan itself constitutes a significant impediment to his return and gave that factor significant weight.

68    These considerations were drawn together in the Minister’s conclusion, where he stated at [95]:

In addition, I have found that a number of other factors also weigh against a decision to cancel the visa. These include the strength, nature and duration of ties to Australia; the impediments if [GRCF] were removed to South Sudan including his claims to face serious harm including torture and death on return. I accept that there is a likelihood that [GRCF] will face these harms however note it is available for him to apply for a Protection visa.

69    Reading the reasons fairly, and without an eye attuned to error, I am satisfied that the Minister took into account the legal consequences of the cancellation in both a formal and substantive sense. No error is disclosed.

70    Ground four is not established.

Ground five

71    By ground five, the Applicant alleges that the Minister failed to consider the legal consequences of his decision, being the impact of non-satisfaction of criterion 5001 of the ‘special return criteria’.

72    Schedule 5 of the Migration Regulations 1994 (Cth) (the Migration Regulations) set out so-called “special return criteria”. If the Applicant’s visa is cancelled under s 501BA, the Applicant will not satisfy criterion 5001 because of cl 5001(d). Satisfying criterion 5001 is a requirement of the majority, if not all, the visas which the Applicant might apply for in the future if his visa is cancelled. In post-hearing submissions, the Applicant identified the visas to which special return criterion 5001 applies. Importantly, non-satisfaction of criterion 5001 cannot be waived.

73    This ground raised two issues. First, whether the special return criteria are properly identified as a legal consequence of the decision in the sense that they are mandatory considerations. Secondly, assuming the special return criteria were a mandatory consideration, whether they were, in fact, considered.

74    In DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 (DLJ18), Flick J took the view that the special return criteria fell outside those matters which must necessarily be taken into account because they concerned a future “decision” to be made pursuant to cl 5001(c) of the Migration Regulations in a manner which his Honour described as “speculative” (see DLJ18 at [15]).

75    Later in the same decision, Bromberg J analysed the cases concerning whether a nexus exists sufficient to support an inference that a legal consequence must be taken into account (see [20]-[26]). His Honour did not accept that a lack of certainty as to whether and when the person may seek to return to Australia justifies a conclusion that the legal consequence of the special return criteria to the person is “too remote” to form a mandatory consideration. His Honour concluded at [28] (in obiter) that:

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

76    Ultimately, Bromberg J considered that the more persuasive contention by the Minister, and the one which his Honour accepted, was that the Minister did take into account the consequences of the non-revocation decision. A similar analysis arises in this case. It is not necessary to decide whether special return criterion 5001 was or is a mandatory relevant consideration because on a fair reading of the Statement of Reasons, I have concluded that the Minister did consider the substance of the legal consequence of his decision arising from the non-satisfaction of the criterion.

77    The Applicant submitted that there is no express mention of the special return criterion in the decision. The Applicant submits that it is no answer that the legal consequence of the decision is an intended outcome, because the decision-maker still must consider the consequence and its impact (NBMZ at [177]-[178] (Buchanan J)).

78    The Respondent argued that consideration of the substance of the special return criterion is evident throughout the Minister’s consideration. The Minister proceeded on the basis that if the Applicant’s visa was cancelled, he would be liable to removal from Australia and would not be able to return in a permanent sense. There are a range of statements to this effect throughout the Statement of Reasons. Without being exhaustive, I note the following:

(1)    the Applicant being permanently returned to South Sudan was the premise of the analysis by the Minister about the impediments that the Applicant would face if removed to South Sudan. The Minister analysed those factors in terms of the impediments the Applicant would face “in establishing himself and maintaining basic living standards” (Statement of Reasons at [84]);

(2)    the Minister considered the health treatment available in South Sudan (Statement of Reasons at [85]) as though the Applicant would need to avail himself of those services because he would likely be resident in South Sudan;

(3)    the Minister noted the language and cultural barriers that would be part of returning to South Sudan (Statement of Reasons at [87]).

79    The only possibility of the Applicant not being returned on a permanent basis to South Sudan is contained within the Minister’s analysis of his potential protection claim. The special return criteria do not apply to a protection visa (sub-class 866).

80    Taking the circumstances together, I accept that the effect of the special return criteria, being the permanent removal of the Applicant to South Sudan, was considered and weighed by the Minister.

81    This conclusion makes it unnecessary for me to enter into the arena as to whether special return criterion 5001 was or was not a mandatory relevant consideration in the overall statutory framework. Ground five is not established.

Ground six

82    By ground six the Applicant argued that the Minister’s decision under s 501BA had ‘expired’ because it was not made within a reasonable time. The Respondent argues that no such implicit time limit exists, and that in any event, if such a limit existed, the Minister was within it.

83    The Applicant submitted that s 501BA(2) carries with it a statutory implication that it is to be exercised within a reasonable time. The Respondent disagrees, arguing that such an obligation is only implied into a provision where the statute imposes a duty to make the decision (citing Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [110] (Horan J)).

84    The Full Court has observed that “[i]t may be accepted that, in the absence of specified time limits, decisions required by statute are to be made within a reasonable time” (Patrick v Australian Information Commissioner (2024) 304 FCR 1; [2024] FCAFC 93 at [37] (Bromwich, Abraham and McEvoy JJ)). The question of what is a reasonable time will depend on the nature of the power under consideration and the statutory context (BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [25] (Bromberg J)). These passages relate to decisions required by statute. Section 501BA(2) does not impose a duty on the Minister (see Palmer at [163] (Feutrill J); Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266 (Morgan) at [57] (McDonald J)). It is not necessary for me to decide whether this is relevant to the implication of a time-based limitation on the exercise of the power in s 501BA(2).

85    In this case, the period of eight months elapsed from the time that the statutory trigger in s 501BA was enlivened. Counsel for the Applicant argued that the Applicant spent that time re-building his life and that the exercise of the power eight months after the AAT decision was too long – particularly when there was no notice that the exercise of the power was in contemplation. The Applicant also sought to rely on the context of the overall accumulation of time that the Applicant had to deal with challenges to his visa status, beginning with the initial cancellation decision in May 2020 (although counsel for the Applicant accepted that this was not the correct temporal measure for the purposes of this ground).

86    When pressed in the course of argument, counsel for the Applicant said that the decision should be made within a period of time not exceeding one to two months. In developing this submission, counsel pointed to the importance of the decision to the Applicant’s ability to continue with his life, likening the ongoing validity of a power to cancel the Applicant’s visa as a sword of Damocles hanging over the Applicant’s head.

87    In this case, there was no evidence about how or why the Tribunal’s decision was drawn to the Minister’s attention, or why it had taken the time it had taken for the Minister to exercise his override power. The case calls to mind the comments of Mortimer J (as her Honour then was) in Tereva where her Honour explained what is in fact involved when a statute permits a decision to be made without affording natural justice (at [13]):

It means that a person such as the appellant, who is going about his business in the Australian community after what on any view was a stressful and prolonged period of uncertainty for him and his parents, is suddenly and without warning again deprived of his liberty and informed that there has been a decision-making process underway concerning his ability to remain in Australia, and about his freedom in the interim, about which he has been entirely ignorant.

88    There are two issues in this ground of appeal:

(1)    first: does s 501BA(2) carry an implicit time limit for its exercise; and

(2)    secondly: if such a time limit does exist, was it exceeded by the gap of eight months between the time that the power was enlivened and the time it was ultimately exercised.

89    In this case, the second issue makes it unnecessary to consider the first. I have concluded that if a time limit does exist, the period of eight months did not exceed it in the circumstances of this case.

90    A similar argument was considered in Chapman. In that case, the Applicant argued that a delay of seven months was sufficient to cause the power in s 501BA to expire. The Court concluded that a period of seven months was not too long for the power to be exercised. However, I accept that Chapman was a case where the Court had before it evidence about the number of cases that were to be assessed and considered (Chapman, [60]). Justice Lee in that case concluded (at [61]) that:

Provided the backlog of cases which existed at the time that the Thresholds Brief was introduced, the preparation necessary to put the Minister in a position where he would be able to decide a case personally, and the nature and significance of the decision being made, the length of time that it took the Minister to decide Mr Chapman’s case was not unreasonable.

91    There was no evidence in this case about the backlog of cases, nor how long consideration of each case would properly take. The Applicant seeks to rely upon the particular circumstances of this case to further distinguish it from Chapman: relying on the Applicant’s personal circumstances to assert that the power ought to be exercised in a manner of weeks or not at all. The Applicant further submits that the personal circumstances of the Applicant are relevant to the assessment, and that in this case, the steps he had taken to re-build his life were matters that should be taken into account.

92    Analogous circumstances were considered in Morgan. In that case, the Minister’s power under s 501BA(2) was exercised nine months after the decision of the AAT. Like this case, there was no evidence before the Court as to the reasons for the timing of the Minister’s decision (see [80]). Without deciding whether s 501BA(2) is limited by a requirement that it be exercised within a reasonable time (at [90]), McDonald J determined that the elapse of nine months did not constitute a failure to exercise the power within a reasonable time (at [84]). With respect, I agree with his Honour’s observation at [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.

93    There is some force to the Applicant’s argument. However, ultimately, these concerns do not find voice in the text of the statute. It is the text which governs the operation of the power (while at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14])). Parliament has given the Minister a personal task to carry out which requires complex analysis based on the national interest. As discussed above, the national interest criterion in this provision is broad and evaluative. The Migration Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest, and this is therefore a matter for the Minister to determine (Palmer at [44]). The identification of relevant matters, and their evaluation, are issues which the Parliament put squarely in the hands of the relevant Minister. It has done so without providing a time period for the exercise of the power. As observed in Morgan, “[t]he 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’” (at [83], quoting KDSP v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 at [186] (O’Callaghan and Steward JJ) regarding the power in s 501A(2)).

94    While it is established on the evidence in this case that the Minister spent only two hours on his decision, it is reasonable and appropriate that the gathering of the underlying material and the preparation of draft reasons by departmental officers would have taken considerably longer.

95    This statutory scheme was adopted in circumstances where its primary function is to provide an “override” power where a revocation decision has been made under s 501CA. That means that in each instance that the power under s 501BA is exercised, it is exercised to set aside the relevant revocation decision and cancel the visa. Without engaging in the issue of whether the power ever expires after it is enlivened, one would expect express identification of that fact if it expired within weeks or months of being enlivened. The implication into the legislative scheme for which the Applicant contends – that is, that the power expires within one to two months – finds no support in the text of the legislation.

96    That said, with respect, I agree with McDonald J’s observation in Morgan at [91] that – regardless of whether a statutory limitation is imposed under the Migration Act – 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”.

97    Accordingly, the sixth ground is not established.

Conclusion

98    The decision of the Minister will be quashed. Whether there should be any reconsideration of the exercise of the power is a matter for the Minister.

Associate:

Dated:    29 April 2025