Federal Court of Australia

Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471

ORDERS

THE COURT ORDERS THAT:

1.    The time for commencement of the proceeding is extended to 12 August 2024.

2.    The Second Further Originating Application is dismissed.

3.    The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

background

1    The applicant was born in the United Kingdom in 1960 and migrated to Australia in 1965. She is a citizen of the United Kingdom. On 1 September 1994, the applicant became the holder of a Class BF Transitional (Permanent) visa (the visa).

2    On 8 March 2018, the applicant was convicted of being an accessory after the fact to a murder and sentenced to six years and six months imprisonment. That conviction was the result of the applicant’s actions in attempting to cover-up the murder of her son’s fiancée Jody Meyers, by her son Neil Archer on 26 August 2016. Neil Archer pleaded guilty to the murder of Jody Meyers and was sentenced to life imprisonment with a non-parole period of 22 years.

3    On 22 May 2018, a delegate of the respondent (the Minister) mandatorily cancelled the visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The delegate was satisfied that the applicant did not pass the character test on the ground that she had substantial criminal record within the meaning of s 501(6)(a) and s 501(7)(c) of the Act. The applicant was invited to make representations as to why the cancellation of the visa should be revoked.

4    On 24 May 2018, the applicant made representations to the Department of Home Affairs requesting revocation of the cancellation of the visa. On 30 November 2022, a delegate of the Minister refused to revoke the cancellation of the visa.

5    On 6 December 2022, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision. On 22 February 2023, the AAT set aside the delegate’s decision and substituted for it a decision that the mandatory cancellation of the visa was revoked pursuant to s 501CA(4) of the Act. The AAT found that the applicant did not pass the character test by reason of having a substantial criminal record, however found that in all the circumstances there was another reason to revoke the cancellation and accordingly, pursuant to s 43(1)(c) of the Administrative Appeals Act 1975 (Cth), set aside the cancellation decision and substituted for it a decision to revoke the cancellation of the visa.

6    On 29 May 2024, the Department sent a brief to the Minister in relation to the applicant which requested that, after considering the submissions and attachments, the Minster indicate “whether you wish to consider exercising your personal power under s 501BA to set aside the AAT’s decision and cancel the visa of [the applicant] because you reasonably suspect that she does not pass the character test and you are satisfied that the cancellation is in the national interest”.

7    On 30 May 2025, the Minister decided to set aside the AAT decision and to cancel the applicant’s visa under s 501BA(2) of the Act (the decision).

AN application for an extension of time

8    Section 477A of the Act imposes a 35 day limit within which an application is to be made to this Court for a remedy in exercise of the Court’s original jurisdiction under s 476A(1)(b) or (c) in relation to a migration decision. This present case is such an application. The 35 day period runs from the date of the migration decision, relevantly defined in s 477(3) as the date of the giving of written notice of the decision. Written notice of the decision was delivered by hand to the applicant on 31 May 2024. Accordingly, the last day on which the application could be made within time was 5 July 2024.

9    The applicant filed an Application for an Extension of Time on 9 August 2024, and an Amended Application for an Extension of Time on 22 November 2024. The applicant’s affidavit made on 21 November 2024 is relied on. The affidavit explains the reason for the delay. In short, on 31 May 2024 she was taken into detention by members of the Australian Border Force. She remains in detention. She was unaware that she could challenge the decision until she received legal advice by telephone in June 2024. That lawyer was not prepared to assist “on an interstate matter” and, in any event, the applicant did not have the financial capacity to then engage a lawyer.

10    Whilst in detention, she received some advice from a caseworker who directed her to the necessary form for the filing of a judicial review application in this Court. The applicant was “not good” at using technology and required the assistance of other detainees. Eventually, the form was prepared and supported by an affidavit by 24 July 2024. The applicant had to wait for a further period of time in order to present her affidavit and make it before a justice of the peace. Having navigated those procedures, the applicant managed to electronically file the application on 9 August 2024, at 4.35 pm with the consequence that it is taken to have been filed on the next business day, 12 August 2024.

11    The period of delay is not significant and is supported by a reasonable explanation. As I explain in these reasons, the amended grounds of appeal are not without merit. Accordingly, I grant the application to extend time to 12 August 2024.

the REVIEW GROUNDS

12    In the Further Amended Originating Application filed on 22 November 2024, two grounds are advanced. At the commencement of the hearing, I granted leave to add a further ground, even though it was not first raised with the respondent’s lawyers until 2 May 2025. I did so on the basis that the applicant’s counsel provided a reasonable explanation as to why the point had not earlier been appreciated, the ground does not turn on any new evidence and is an orthodox contention that in part the Minister’s reasons are infected with legal unreasonableness or irrationality. A further matter that informed the exercise of my discretion was that senior counsel for the respondent, Mr Kay Hoyle SC, informed me that he was able to deal with the point orally and, if necessary, I stated that I would be favourably disposed to granting him leave to provide a further submission in writing. In the events as they occurred, it was not necessary to grant leave.

13    Thus, the arguments proceeded by reference to the applicant’s Second Further Originating Application filed on 2 May 2025.

Ground 1

14    This contends the decision was infected by jurisdictional error in that the Minister purported to exercise the s 501BA power “after it had been abdicated because it had not been exercised within a reasonable time, such as to amount to a constructive failure to exercise jurisdiction”. The ground is particularised as:

(i)    Section 501BA [is] only exercisable once a delegate or [the AAT] concludes that, according to law, a visa cancellation should be revoked.

(ii)    Section 501BA is silent as to when it should be exercised. In those circumstances there is a presumption that Parliament intended the power in s 501BA be exercised within a “reasonable time”.

(iii)    The power in s 501BA is only enlivened at the end of a multi-step process. Each step of which is governed mostly by tight and express statutory time-frames. Those statutory deadlines are informative in showing a Parliamentary intention that this statutory scheme is one in which promptitude is expected.

(iv)    On 22 February 2023, the [AAT] concluded that the decision to cancel the applicant’s visa made on 22 May 2018 should be revoked.

15    For the applicant, Ms Batten submits that the ‘reasonable time’ within which the power in s 501BA must be exercised is to be determined by reference to the subject matter, purpose and importance of the power, the nature of the interests affected, the likely prejudicial impact on interest-holders of any delay and the practical limitations that attend the exercise of the power in the context of the particular legislative scheme. Those matters are referenced by analogy to BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [25], Bromberg J.

16    Her submissions continue to the effect that the subject matter and purpose of the power demonstrates Parliament’s intention that it be exercised promptly, which is reinforced by the importance of the power to the public and to the visa holder who is exposed to potential cancellation of their visa, deprivation of their liberty and deportation.

17    The prejudicial impact of the delay on the applicant is considerable. The applicant had been in the community for 15 months and had been rebuilding her life in that time. The applicant had reconnected with her family, including caring for her son who has an intellectual disability.

18    Section 501BA should be understood in its statutory context and is to be construed by reference to the established principle of statutory interpretation requiring strict construction of an Act which affects the personal liberty of the subject. The power is only enlivened at completion of six statutory steps which are governed by strict deadlines. These statutory deadlines demonstrate Parliament’s intention that the scheme requires promptitude. A reasonable time must also be viewed in the context of the Minister’s exercise of the power as not requiring natural justice to be afforded, any form of representation to be awaited or any hearing to be convened and consequently is able to be exercised “very quickly indeed”.

19    A reasonable time within which to exercise the power would be “days or weeks, not months or years”, which presumption is reinforced by the statement of the introducing Minister in the Second Reading Speech of the Bill by which s 501BA became law that: “The measures proposed will ensure that the government can move quickly to take actions against non-citizens who pose a risk to the Australian community…”: Migration Amendment (Character and General Visa Cancellation) Bill 2014, 24 September 2014, Hansard p 10325.

20    The presumption argument primarily relies on Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533, 573 – 574, Dixon J; 590, Williams J; CPFC v Minister for immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [200], Crennan J; [313] Kiefel J; [376], Gageler J and [451], Keane J and recent obiter reasoning in Morgan v Minister for immigration and Multicultural Affairs [2025] FCA 266 at [58] – [70], McDonald J.

21    If that is the correct construction of the legislative scheme, the delay in this case was approximately 14 months from when the Minister became aware of the AAT decision on 22 February 2023, until 30 May 2024 when the decision was made, which in the circumstances was unreasonable and unsatisfactorily explained.

22    If each of those propositions is accepted, then the consequence is that in making the decision, the Minister purported to exercise a power that he no longer possessed: Morgan at [70].

23    For the respondent, Mr Kay Hoyle with Mr Solomon-Bridge submit that it is incorrect to speak of a presumption that the power at s 501BA is to be exercised within a reasonable time. Rather, the question is whether that is an implication which flows from the text, context and purpose of the provision: CPFC at [313], Gageler J. There is not. Established authority confines implications of that character to two class of cases. One, where there is a duty to decide: AQM 18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424 at [36], Besanko and Thawley JJ; AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; (2018) 162 ALD 449 at [64], [69], Moshinsky J. The other, where there is a temporal constraint on the exercise of the power, which was the case in Koon Wing where the power was to be exercised “upon the expiration or cancellation” of a particular certificate.

24    What must be understood is that the Minister’s power is personal, non-delegable and unique. It is an overriding power conditioned on the making of a decision by the AAT or a delegate under s 501CA to revoke a decision under s 501(3A) to cancel a visa that has been granted to a person. This power may be exercised if the Minister is satisfied that cancellation is in the national interest; a political question for which the Minister is politically accountable. Further, exercise of the power is non-compellable, may only be reviewed in this Court and is exceptional. The absence of a duty or a temporal limitation is in stark contrast with the time constraints of the anterior provisions: notice of the cancellation decision must be given as soon as reasonably practical, representations are required to be made within 28 days, a decision must be made on the representations as soon as reasonably practical and, if the outcome is adverse, the individual has only nine days to apply for review by the AAT. These considerations cannot be reconciled with an implication that the personal power of the Minister may only be exercised within a reasonable time.

25    Relatedly, it is most unlikely that Parliament intended that the power in s 501BA be constrained by an implied time limit, breach of which would render the Minister’s decision invalid in circumstances where the Minister was satisfied that cancellation of a person’s visa was in the national interest.

26    If contrary to those submissions, there is a reasonable time implication, unreasonable delay is fact sensitive and the delay is explained in the affidavit made by an officer of the Department, Ms D’Amico on 28 April 2025, which evidence was not challenged by cross-examination. The onus is on the applicant to show that there has been unreasonable delay. However, if the applicant establishes a delay which calls for an explanation, the persuasive onus may shift to a respondent to establish that explanation. The delay in this case, from 22 February 2023 to 30 May 2024, is not one which shifts the persuasive onus to the respondent.

27    Although not determinative, it is telling that in relation to the exercise of the s 501BA power in Morgan, McDonald J held that a delay of nine months was not unreasonable and in Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24, Lee J held that seven months was not unreasonable. In KDSP v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1 in relation to the not dissimilar s 501A(2) power, the Full Court held that eighteen months delay was not unreasonable.

28    There can be no credible contention that the Minister was personally responsible for any delay, but it is accepted that the Minister bears ministerial responsibility for acts, errors and omissions made by officers in the Department.

29    The applicant cannot contend that she has suffered prejudice by reason of any delay. That follows from conferral of a power to act by reference to the national interest which by nature renders the personal interests of the visa-holder, and any prejudicial impact on the applicant, of less prominence.

30    For the following reasons, I reject this ground.

31    The applicant’s presumption argument rests on a large proposition that faces many obstacles. Amongst the difficulties, the ensuing are prominent. The applicant accepts (as she must) that the Minister is not duty bound to exercise the power and thus her submission must identify a temporal limitation on its exercise in order to establish a basis for the presumption by analogy with Koon Wing. Unlike the provisions in that case, ss 3 and 4 of the Immigration Act 1901 (Cth), the power at s 501BA is not temporally limited by the word “upon” or equivalents such as “until”. Whilst it is a necessary precondition to exercise of the power that a decision has been made under s 501CA to revoke the cancellation, that is not a temporal limitation.

32    The Minister is not required to consider the exercise of the s 501BA power, is not obliged to afford procedural fairness and is entitled to consider a very broad range of matters in the assessment of what is in the national interest. The presumption contention does not explain how it is reconcilable with those matters.

33    No constraint is imposed on the Minister as to how he or she is to be satisfied of the preconditions to the exercise of the power: Ozer v Minister for Home Affairs [2019] FCA 104 at [43(1)], Steward J. Satisfaction may arise by consideration of matters that have arisen after the s 501CA decision. Conceivably, relevant matters may post date the revocation decision by many months. Why then is the power constrained by implication that if not exercised within a reasonable time, it ceases to be available?

34    The power to determine what is in the national interest is “broad and evaluative” and the “question is largely a political one”: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) FCR 156 at [43], Derrington and Hespe JJ. The Minister is accountable to Parliament for any decision to exercise “general political oversight of administrative review” (Ozer at [43(7)]) or, to decline to do so. An implication to the effect that the Minister is obliged to consider the exercise of the power within an objectively assessed reasonable period is likely discordant with the political nature of the power.

35    As interesting as these issues are, I do not resolve them. I take the same pathway as Lee J in Chapman, McDonald J in Morgan and Bennett J in GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415. I will assume favourably to the applicant that s 501BA is subject to the implication that the Minister must consider the exercise of the power within a reasonable time. However, for the reasons that follow, I am not objectively satisfied that he failed to do so.

36    I find the following facts in accordance with the uncontested evidence of Ms D’Amico. The Minister became aware of the AAT decision on 22 February 2023. On 24 February 2023, a case officer from the Complex and Controversial Cases Section (CCCS) of the Department completed an assessment of the applicant’s case against the referral thresholds and determined it warranted referral to the Minister. The CCCS is an operational area within the Character and Cancellation Branch of the Department. Once the Minister considers a referral brief, he or she decides if a case is to be the subject of a more detailed brief to consider the exercise of the s 501BA power. That decision may be communicated in various ways, including at a weekly Departmental character assessment meeting with representatives of the Minister’s office. The Minister does not personally attend those meetings.

37    Ministerial Direction No. 99 commenced on 3 March 2023. A client brief for the applicant’s case was uploaded to the Parliamentary Document Management System (PDMS) on 8 and 9 March 2023. It set out two options: consider using the Minister’s personal powers under s 501BA or take no further action. A weekly character meeting was held on 21 March 2023, at which the Minister’s representative advised the Department that the Minister wished to proceed with a s 501BA Ministerial Submission in relation to the applicant.

38    On 8 November 2023, Ms D’Amico received an email which allocated to her preparation of the requested Ministerial Submission. Ms D’Amico is not aware of the specific reason for the delay in that referral. More generally however, capacity within the relevant sections of the Department was constrained for a number of reasons. The introduction of Ministerial Direction No.99 resulted in departmental officers prioritising the finalisation of revocation requests in progress prior to its commencement. That work was significantly affected by the decision of the Full Court in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177, which was decided on 22 December 2022. The Full Court decided that aggregate sentences did not amount to a term of imprisonment of 12 months or more.

39    In June 2023, the usual work of the departmental officers was disrupted by a number of court decisions which required further diversion of resources; in particular: Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91; (2023) 298 FCR 57, decided on 13 June 2023 and Minister for Immigration, Citizenship and Multicultural Affairs v Thornton (2023) 276 CLR 136; [2023] HCA 17, decided on 14 June 2023. These decisions caused case officers, including Ms D’Amico, to place their existing casework “on hold” and to prioritise “the large number of persons in sensitive cases affected by these decisions”.

40    The normal work of the departmental officers was further disrupted on 28 November 2023, when the High Court published the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; [2023] HCA 37. This caused resources to be diverted to concentrate on identifying relevant character cases with NZYQ profiles.

41    From March 2022 through to 2024, departmental resources were focused on work to reduce, as far as practicable, the number of character cancellation persons held in immigration detention, including as a result of the impact of the Covid – 19 Pandemic. In practice this meant that officers prioritised processing non-citizens in immigration detention with unresolved s 501CA revocation requests. Ms D’Amico was significantly involved in that work, after the applicant’s case had been allocated to her in November 2023. Ms D’Amico took annual leave from 2 January 2024 until 23 January 2024, and shortly thereafter she accepted an acting appointment in a different area of the Department until late February 2024. She did not return to her former departmental role until early March 2024.

42    On or about 18 March 2024, Ms D’Amico had finalised her preparation of the s 501BA Ministerial Submission for the applicant. Her work was then subject to the “usual internal quality assurance review process”. On completion of that process, the finalised Ministerial Submission was uploaded to the PDMS on 2 May 2024. An updated criminal history check for the applicant was uploaded to the PDMS on 22 May 2024. The submission was cleared to be provided to the Minister on 29 May 2024. The Minister made the impugned decision the following day.

43    When pressed in oral argument to identify when a reasonable time for the Minister to consider exercise of the s 501BA power expired, Ms Batten commenced by submitting that there is no evidence of what if any action was taken by the Department between 21 March 2023 and 8 November 2023, that any inadequacy in the resources of the Department is not exculpatory, and that viewed objectively a period of approximately 14 months to consider the exercise of the power in the applicant’s case was not reasonable. When asked to refine that submission and identify a time point, beyond which the delay was unreasonable, Ms Batten submitted that the decision was required to have been made within a period of seven months; that in any event this Court was not required to identify a point in time if, considering all of the relevant facts, the 14 month period was objectively unreasonable.

44    I am unable to accept those submissions. As is well understood, Commonwealth Ministers are very busy people with a multitude of responsibilities. There are two time periods to consider in this case. The first commences on 21 March 2023 and concludes when the task of preparing the Ministerial Submission was allocated to Ms D’Amico on 8 November 2023. True it is, there is no specific evidence about what held up the allocation of this matter to Ms D’Amico within that period, but there is an explanation as to how the resources of the Department were devoted to the prioritising of other more urgent matters within that period, caused by a combination of the commencement of Ministerial Direction No 99 and decisions of the Full Court of this Court and of the High Court. I am satisfied that there is a reasonable explanation for the fact that the task of preparing the Ministerial Submission was not allocated until 8 November 2023.

45    The second time period runs from 8 November 2023 until the Minister’s decision of 30 May 2024. A specific explanation for delay within that period has been provided. I accept that there was no unreasonable delay once the matter was allocated to Ms D’Amico, noting of course that the usual Christmas/New Year vacation period was also a contributing factor.

46    Thus, although there was an identifiable period of delay and one which in my view called for an explanation, I am satisfied with the explanation and it follows that I am also satisfied that the delay was not unreasonable.

47    Accordingly, this ground fails.

Ground 2

48    This ground contends that by 29 May 2024, the Minister had already decided not to exercise the power in s 501BA with the consequence that it was “spent”. The contention is particularised in this way:

(i)    The Tribunal’s decision was made on 22 February 2023.

(ii)    At that time, in relation to decisions of the [AAT] that revoked a decision to cancel a person’s visa, the Department used thresholds which had been personally endorsed by the former Minister for Home Affairs to determine which cases the Department would manage and which cases the Department would refer to the Minister.

(iii)    On 29 March 2023, the Minister personally endorsed the “proposed AAT set aside referral thresholds” in Submission PDMS. Ref Number MS22-0003022.

(iv)    On the referral thresholds the Minister personally endorsed, the Minister decided not to exercise the power in s 501BA to set aside the Tribunal’s decision.

49    The applicant submits that “the circumstances appearing in the evidence” give rise to a reasonable and definite inference that that Minister decided not to intervene and exercise the s 501BA power in relation to the applicant. Those circumstances are said to be the following.

50    When the AAT handed down its decision revoking the cancellation of the applicant’s visa, the Department utilised thresholds to determine which cases should be referred to the Minister for consideration of the exercise of his personal powers under ss 133A, 133C, 501A and 501B of the Act. Those thresholds were endorsed by the former Minister for Home Affairs in February 2020.

51    On 16 March 2023, a client brief was prepared for the Minister’s Office by the Department in relation to the applicant’s case. The brief recorded that the Department has assessed the applicant against the thresholds and recommended that her case be referred to the Minister for consideration of the use of his personal power.

52    On 21 March 2023, the applicant’s case was discussed at the weekly character meeting. The meeting outcome note records that an adviser to the Minister requested a s 501BA submission be prepared for the Minister’s consideration.

53    On 29 March 2023, the Minister personally endorsed updated thresholds for the Department to implement in determining which cases should be referred for consideration of the exercise of his personal powers (Updated Referral Thresholds). The Updated Referral Thresholds were contained in Submission PDMS. Ref Number MS22-0003022 prepared by the Department for the Minister’s Office on 17 January 2023. The Updated Referral Thresholds were higher than the previous thresholds for referral.

54    The applicant submits that it should be inferred that the Updated Referral Thresholds applied to the applicant and the Minister thereby decided not to exercise his personal powers in her case. The consequence is that the power was spent.

55    In my view this ground fails simply by reference to the facts.

56    The thresholds brief signed by the Minister on 29 March 2023 did not refer to the applicant or any other case specifically. It proposed amended referral thresholds and set out a comparison of the existing thresholds and the Updated Referral Thresholds.

57    By no later than 16 March 2023, the applicant’s case had already been assessed against the old referral thresholds. The Department assessed her case and recommended that it be referred to the Minister to decide whether he wished to consider the exercise of his personal power. The Minister decided he did, which decision was communicated by a representative of his office to the Department at the weekly character meeting on 21 March 2023. There is no evidence that the Minister revisited, revoked or varied that decision. There is no evidence the Department revisited its assessment of the applicant’s case after the Updated Referral Thresholds commenced.

58    The Minister’s endorsement of the Updated Referral Thresholds on 29 March 2023 cannot be construed as a decision not to exercise the power in the applicant’s case. The document does not refer to the applicant, indeed it is entirely general in form. It speaks to categories of cases that the Department will triage and mark for priority threshold assessment: “Threshold assessments are largely subjective in nature and will result in one of two outcomes”. That is refer to the Minister, where the Department assesses a case as meeting the thresholds or departmental management if assessed as not meeting the thresholds, in which case the matter will be “administratively finalised”. In the submission to the Minister, the applicant emphasises paragraph [16]:

If endorsed, the Department will triage and assess the current caseload and any new referrals against the updated thresholds. Updates will be provided to your office through the weekly character and cancellations meeting on the progress and outcomes of this caseload for your visibility.

59    By endorsing the proposal, on no view can it be said that the Minister set aside his decision communicated eight days earlier to the Department that he wished to consider the exercise of his s 501BA power in the applicant’s case. This is a policy document. It cannot impinge on the Ministerial power to consider individual cases if the Minister wishes to do so, even if they do not meet the endorsed thresholds. It did not purport to displace any prior Ministerial determination that submissions should be prepared for identified individuals.

60    For the applicant’s argument to succeed, it must be established that in fact the Minister decided not to consider the exercise of his power in her case. Not only is there no evidence that he reversed course, but the fact is also that he did consider the exercise of the power conformably with his decision of March 2023, which required a submission for that purpose.

61    Accordingly, this ground fails.

Ground 3

62    This ground contends that the Ministerial exercise of the power was legally unreasonable in that his state of satisfaction was based on irrational, illogical or unreasonable reasoning with the consequence of constructive jurisdictional error. The particularised matters are:

(i)    It was irrational, illogical or unreasonable to reason on the basis of “Mrs ARCHER’s family members engaging in criminal conduct again” (Reasons [69]), because, on the material before the Minister, the only family member who had engaged in serious violent offending was Neil Archer. Neil Archer was serving a sentence of life imprisonment, with a non-parole period of 22 years.

(ii)    The assessment of the risk and nature of harm was limited to if Mrs Archer engaged in “comparable conduct again” (Reasons [69]), “further attempts to conceal serious violent offences” (Reasons [35]) or “any future offending of a similar nature” (Reasons [36]).

(iii)    There was no assessment of the nature of harm from “some other form of criminal or negative activity” (Reasons [65]).

63    The argument was developed in this way. The Minister’s risk assessment of the applicant was flawed. Her offending was limited to the single offence of acting as an accessory after the fact to her son’s murder of his partner. However, the Minister reasoned that that there was a risk that if any member of the applicant’s family offend in the future, it is possible that the applicant may again engage in criminal misconduct by assisting a family member to conceal a crime. This assessment extended to other unspecified “negative activity”. There was no probative basis for the Minister to speculate that other members of the applicant’s family may in the future engage in criminal conduct or negative activity. Reasoning in that way was illogical and irrational.

64    The impugned reasoning is at [35], [36], [65], [66] and [69]:

In particular, I have had regard to whether [the applicant] poses a risk to the Australian community through committing further criminal offences by engaging in further attempts to conceal serious violent offences, recognising that the existence of such a risk is a significant indication that it is in the national interest to set aside the AAT decision and cancel [the applicant’s] visa.

Having regard to the nature of [the applicant’s] offending conduct in the past, as outlined above, I consider that any future offending of a similar nature would have the potential to cause psychological injury to members of the Australian community, as well as the financial burden of wasted law enforcement resources.

…

I accept [the applicant’s] offending occurred in unique circumstances. I have considered the view of the AAT that it is highly unlikely that she would find herself in similar circumstances, and I broadly concur. While I find it highly unlikely she would ever again find herself in the situation that one of her sons would murder another person, I consider it is possible that a close family member could become involved in some other form of criminal or negative activity that might arouse her protective instincts.

It is clear from the letters of support submitted with the request that [the applicant] has the support of her family, including her husband. However I note this support was available at the time of the offending and not only did it not prevent what she did, but it could be said in some ways to have formed part of the reason for it.

I have found the nature of [the applicant’s] conduct is very serious. I have further found that actions taken with the intention of covering up another person’s very serious offending have the potential to cause physical and/or psychological injury to members of the Australian community, as well as impacting on the ability of law enforcement and courts to ensure community safety through the carriage of justice. On balance, I consider there to be a low likelihood that [the applicant] will reoffend. Nevertheless, I consider that, should any of [the applicant’s] family members engage in criminal conduct again, it is possible that she could again engage in efforts to conceal such conduct, notwithstanding its illegality. Should [the applicant] engage in comparable conduct again it may result in great physical and/or psychological harm to members of the community. I have given this weight towards a finding that it is in the national interest to cancel [the applicant’s] visa.

65    There are fundamental difficulties with the applicant’s submission. It fails to read the reasons in their entirety. It overlooks all of the earlier findings from [34] to [37], where the Minister addressed the risk to the Australian community. The Minister considered the likelihood that the applicant may reoffend in the future and that any future offending “of a similar nature would have the potential to cause psychological injury to members of the Australian community, as well as the financial burden of wasted law enforcement resources”. At [44]-[61], the Minister considered evidence about the applicant’s remorse and prospects of rehabilitation to conclude at [62] that her good conduct in prison and the vocational courses she had completed were not sufficient “to be satisfied on the evidence before me that she has meaningfully addressed her past trauma and her need to protect her family at all costs, or develop sufficient insight into her own offending”.

66    Thus, the Minister was satisfied the applicant had not satisfactorily engaged with the circumstances of her offending, which he then considered in the risk assessment at [65] that whilst it was “highly unlikely” that the applicant would act as an accessory after the fact to murder, he considered it possible that, if a family member engaged in future criminal conduct, her maternal instincts may lead to further offending.

67    Whilst one may disagree with the Minister’s assessment of the likelihood of further parasitic offending, that is not to the point. There is a disclosed basis for that conclusion in the earlier findings that the applicant lacks insight as to the seriousness of to her offending and had not addressed her maternal instinct to protect members of her family, despite their criminal activity.

68    Plainly, the Minister was concerned about the future risk of serious misconduct by the applicant. The Minister reasoned by reference to possible future offending by the applicant if she again faced the reality that a member of her close family engaged in serious criminal or other negative activity. It is a risk that the Minister could not eliminate.

69    Viewed in this way, there is a disclosed basis for the Minister’s risk conclusion. On the material considered by the Minister it cannot be concluded that there was no basis for the Minister to infer that there was a future possible risk that the applicant may engage in similar accessorial misconduct because of her lack of insight as to her past offending and maternal protective instincts: cf Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [35], Allsop CJ, Besanko and O’Callaghan JJ. This is not a case that meets the high threshold that the Minister’s reasons and conclusions were simply not open on the evidence or lacked a logical connection between the evidence and the inferences that he drew: King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [53] – [55], Anderson, Feutrill and Raper JJ.

70    This ground fails.

Result

71    The Second Further Originating Application filed on 2 May 2025, will be dismissed. There is no reason why costs should not follow the event.

72    The Court records its gratitude to the considerable efforts of Ms Batten as pro bono counsel and her instructing solicitors, Carina Ford Lawyers Immigration Lawyers. Each has worked diligently in the formulation and presentation of the applicant’s case.

Associate:

Dated:    14 May 2025