Federal Court of Australia

CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs on an agreed or assessed basis.

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

REASONS FOR JUDGMENT

RAPER J:

1    By further amended originating application filed 31 January 2025, the applicant, CMP25 (currently in immigration detention), seeks judicial review of the decision of the respondent, the Minister for Immigration and Multicultural Affairs made on 2 July 2024 under s 501BA(2) of the Migration Act 1958 (Cth) to set aside the decision of the (then) Administrative Appeals Tribunal on 13 November 2023 and cancel the applicant’s Class BF Transitional (Permanent) visa (the Minister’s decision or M). The Tribunal set aside the decision of the Minister’s delegate, made on 15 August 2022, which refused to revoke the 15 August 2018 (mandatory) cancellation of the applicant’s visa under s 501(3A) of the Act by reason of the applicant having been convicted and sentenced to a term of imprisonment of 12-months: ss 501(3A)(a)(i), (6)(a), (7)(c). The Minister was satisfied in his decision that the applicant does not pass the character test by reason of s 501(6)(a) on the basis of s 501(7)(c) (substantial criminal record of sentenced to a term of imprisonment of 12-months) and that it is in the national interest to cancel his visa.

2    The applicant seeks orders that the Minister’s decision be quashed, an injunction restraining the Minister from removing the applicant from Australia, a writ of habeas corpus to issue, and an order for his costs.

3    The application advanced two grounds of review: First, that the Minister’s decision is affected by jurisdictional error in being unreasonable, illogical or irrational in the findings and reasoning advanced in respect of the applicant’s protection claims. The unreasonableness was said to arise because (a) the Minister was obliged to consider the applicant’s protection claims and could not defer such consideration (but had deferred consideration or failed to consider); and (b) the Minister, having identified legal consequences of his decision as including removal and pending removal, detention, did not give the applicant’s protection claims any weight. Secondly, that the Minister’s decision is affected by jurisdictional error in being unreasonable, illogical or irrational in the findings and reasoning advanced in respect of the risk that the applicant posed to the Australian community.

Background

4    The relevant background reveals that, prior to the most recent cancellation by the Minister of the applicant’s visa, pursuant to s 501BA(2) of the Act (being the subject of this review), the Minister had (mandatorily) cancelled the applicant’s visa on 15 August 2018. On 15 August 2022, the Minister’s delegate refused to revoke the mandatory cancellation (D). Then that decision was the subject of successful review before the Tribunal on 8 November 2022: HSRN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377, and then the Full Court quashed the Tribunal’s decision and remitted it back to the Tribunal to be redetermined: Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; 257 FCR 662.

5    The Tribunal redetermined the applicant’s application to set aside the Minister’s decision not to revoke the cancellation and determined, on 13 November 2023, that the Minister’s decision be set aside and the mandatory cancellation of the applicant’s visa be revoked: HSRN v the Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3675 (T).

6    Notably, also, a year after the Minister had mandatorily cancelled the applicant’s visa, and during the period that the review processes with respect to that decision were being exhausted, the applicant brought, on 4 April 2019, an application for a Protection (Class XA) (subclass 866) visa. This application was refused by a delegate of the Minister on 18 July 2019 and the delegate’s decision was affirmed by the Tribunal on 28 October 2019 (Member Cranston). No citation is available.

7    The applicant subsequently reviewed that decision in the Federal Circuit and Family Court of Australia, and on 20 December 2022 (a year before the Tribunal’s second decision revoking the mandatory cancellation of the applicant’s visa on 13 November 2023), quashed the Tribunal’s decision and remitted the protection visa application back to the Tribunal for redetermination: XY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1076. Despite that decision being made a year before the Tribunal’s second decision revoking the cancellation of his then extant visa, the applicant’s further review of the Minister’s decision regarding his protection visa claim had not been heard and determined by the time of the Tribunal’s second decision to revoke the mandatory cancellation of the applicant’s visa.

8    It was not until on 14 May 2024, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision concerning his protection visa claim after the applicant withdrew his application for review of the Minister’s decision to refuse to grant him a protection visa.

9    On 2 July 2024, the Minister, pursuant to s 501BA, decided to set aside the decision of the Tribunal on 13 November 2023 and to cancel the applicant’s Class BF Transitional (Permanent) visa.

10    The parties were in agreement that the background facts as set out at [2]–[15] and [17] in the applicant’s written submissions dated 13 February 2025 were accurate and are extracted as follows:

2.     The Applicant is a citizen of Portugal who was granted a Transitional (Permanent) (Class BF) Visa on 28 April 1971. He moved to Australia in 1975 from what is now the Portuguese Autonomous Region of Madeira with his parents and five siblings when he was nine years old. He has not left Australia since then. In 2017, the applicant was diagnosed with HIV: Court Book (CB) 15 at [40].

3.     In May 2007, the applicant was sentenced to imprisonment for six years with a three year non-parole period for the offence of sexual intercourse without consent: CB 27.

4.     On 29 January 2010, following a Notice of Intention to consider cancelling the applicant’s visa under subsection 501(2) of the Act based on the 2007 conviction, a delegate of the Minister decided not to cancel the applicant’s visa and warned that further offences could result in visa cancellation being reconsidered: CB 1610.

5.     On 20 April 2018, the applicant was convicted of “Remain in building/land w/i commit indictable offence” and “common assault”. On 25 June 2018, the applicant plead [sic] guilty to an offence of “cause or set fire to the property of another or Crown” and was sentenced to one year imprisonment with a nine month non-parole period. On 2 July 2018, the applicant was convicted of further offences: “Possess prohibited drug”, “Goods in personal custody suspected being stolen (not m/v)” and “Larceny-T2”, for which he was sentenced to a 2 year section 9 bond.”: CB 26.

6.     The applicant has not been convicted of any offence since this time.

Visa cancellation

7.    On 15 August 2018, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. The Minister purported to notify the applicant of the cancellation of his visa and invite him to seek revocation of that decision under s 501CA. The applicant did not respond to the invitation.

8.     On 20 January 2022, the applicant was renotified under s 501CA(3) of the Act and invited to make representations about revocation of the cancellation decision after the notification of 15 August 2018 was found to be invalid.

9.     On 15 August 2022, a delegate of the Minister refused to revoke the visa cancellation.

10.     On 8 November 2022, the Administrative Appeals Tribunal set aside the delegate’s non-revocation decision. As a consequence of that decision, the applicant’s Class BF Transitional (Permanent) visa was reinstated and he was released from immigration detention: CB 11 at [8].

11.     The Minister sought judicial review of the Tribunal’s decision. On 11 May 2023, the Full Court of the Federal Court allowed the Minister’s application, quashed the Tribunal’s decision and remitted the matter for reconsideration.

12.     On 13 November 2023, the Tribunal again set aside the delegate’s decision and ordered that the mandatory cancellation of the Applicant’s visa be revoked. On 2 July 2024, nearly 8 months after the Tribunal’s decision to revoke the cancellation of the applicant’s visa, the Minister exercised the power under s 501BA to set aside the Tribunal decision and cancel the applicant’s visa.

Protection visa application

13.     On 4 April 2019, the applicant applied for a protection visa, claiming to fear persecution if forced to return to Portugal for reasons including his membership of social groups “homosexual with HIV and people living with HIV and because of his need for lifelong HIV treatment, need to access Triumeq, limited means, persecution by way of stigma in a predominately Catholic count[r]y, inability to work and inability to access medical and community services”. The applicant “stated that due to his HIV positive status he would suffer hardship and discrimination”: CB 1711 at [3].

14.     On 28 October 2019, the Tribunal affirmed the refusal of the applicant’s protection visa, whilst being “moved to present this case to the Minister given the applicant’s integration into the Australian community, his clear love for Australia and the sheer length of time he has lawfully been here”: CB 1727 at [61].

15.     In December 2022, the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) set aside the Tribunal’s decision due to jurisdictional error because the Tribunal had failed to properly consider the applicant’s protection claims, and remitted the matter for reconsideration.

…

17.     On 18 July 2024, the applicant was notified his visa had been cancelled by the Minister under s 501BA of the Act: CB 6.

(Footnotes and emphasis omitted.)

11    There was an additional factual matter (deposed to in the affidavit of Jermaine Alfaro dated 4 December 2024) sought to be relied upon by the applicant at [16] of his written submissions:

16    After confirming with the Minister’s representative that the Minister would not be challenging the Tribunal’s decision of 13 November 2023 to revoke the cancellation of his permanent visa, on 9 May 2024 the applicant withdrew his protection visa merits review application. On 15 May 2024, the Tribunal accepted the application to withdraw the review application.

12    The Minister did not have before him the affidavit of Jermaine Alfaro dated 4 December 2024. For the reasons given at the end of this decision, evidence given by the applicant as to the reason(s) why he withdrew his application to the Tribunal for merits review of the decision to refuse to grant a protection visa are not admissible on this application.

13    The relevant background therefore reveals, that prior to the Minister’s decision to cancel (which is the subject of this review) the parties had engaged in multiple review processes concerning the previous cancellation decision and the Minister’s refusal to grant the applicant a protection visa. What is clear however is that by the time of the Minister’s decision to cancel the applicant’s visa, the applicant had elected to not pursue his protection claim.

14    For reasons which will become apparent below regarding ground one, much was sought to be made of the circumstances in which the applicant made his election not to pursue his protection claim, ostensibly by reason of a purported inference to be drawn from the Minister’s decision not to review the 13 November 2023 Tribunal decision revoking his decision to cancel the visa—namely that the Minister would not move to cancel the applicant’s visa.

15    However, there was no evidence before the Minister at the time of making his decision as to why the applicant had elected to not proceed with that claim. Further, to the extent that there was an attempt to put evidence before this Court, which was refused (for the reasons given at the end of this decision), none of that evidence would have established why the applicant chose not to continue to pursue his protection claim. Further, there was no evidence before the Court to suggest that the Minister and/or through his legal representatives ever represented to the applicant that the Minister would not exercise his power under s 501BA, which was open to him.

The statutory context

16    The Minister found that he was empowered to make a decision under s 501BA of the Act because he was satisfied that the applicant does not pass the character test by operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act, and that cancelling the applicant’s visa was in the national interest.

17    By s 501BA, the Minister has the discretionary power to set aside a decision to revoke a mandatory visa cancellation if satisfied that both the person does not pass the character test by reason of the operation of certain provisions (in this case, because of the operation of s 501(6)(a) on the basis of s 501(7)(c)), and that the cancellation is in the national interest. Section 501BA (as it then was) was in the following terms:

501BA     Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)     This section applies if:

(a)     a delegate of the Minister; or

(b)     the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(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.

(3)     The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)     The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)     A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (2), see section 501G.

18    As stipulated by s 501BA(2), the Minister is required to form a state of mind about the national interest at the time that the power is exercised. The discretion is broad and evaluative. The Act does not stipulate any factors that the Minister must have regard to when achieving the requisite state of satisfaction regarding whether the cancellation is in the national interest: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; 306 FCR 156 at [44] per Derrington and Hespe JJ; Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61]; Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1 at [20]–[21]. This is so, given “national interest” is a perspective of a largely political nature: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]. By contrast to other provisions, s 501BA(3) specifically removes the obligation to afford a person procedural fairness. However, it has been held with respect to similar provisions, the Minister must reach the requisite state of satisfaction reasonably: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane Nettle and Gordon JJ.

19    A person must overcome a high threshold in establishing that a decision is affected by legal unreasonableness. As observed by Mortimer CJ in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162 at [81]:

81     To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [80] (Nettle and Gordon JJ). In this context, the term “abuse” of power refers to an exercise of power other than for the purposes and within the limits conferred.

20    As briefly adverted to above, the applicant challenged the Minister’s decision on two grounds.

The Minister’s decision

21    The Minister decided to exercise his discretion under s 501BA of the Act to set aside the decision of the Tribunal, made on 13 November 2023, and cancel the applicant’s Class BF Transitional (Permanent) visa because he was satisfied that the applicant does not pass the character test by operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act, and that cancelling the applicant’s visa was in the national interest.

22    There are two relevant aspects of the Minister’s reasons relied upon by the applicant in this review.

23    For the purposes of ground one, that the aspect of the Minister’s reasons concerning the exercise of his discretion, under s 501BA, where the Minister referred to the legal consequences of the decision, as set out at M[69]–[80]. Those portions are extracted in full below:

Legal consequences of the decision

69.    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.

70.    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).

71.    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.

72.    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 and that s197C(3) no longer operated in respect of the person.

73.    Relevantly though, [the applicant] applied for a protection visa on 4 April 2019 in which he claimed that Australia's non-refoulement obligations are enlivened. This application was refused by a delegate on 18 July 2019 and the delegate's decision was affirmed by the Migration & Refugee Division of the AAT on 28 October 2019. [The applicant] subsequently sought judicial review of that decision and on 20 December 2022; the Federal Circuit and Family Court of Australia (Division 2) made orders quashing the AAT’s decision and remitting the protection visa application to the AAT to redetermine according to law: XY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1076. The AAT decided on 14 May 2024 that they no longer had jurisdiction to review the delegate's decision to refuse [the applicant]'s visa application, after he withdrew his application for review.

74.    I am aware that the statutory consequence of a decision to cancel [the applicant]'s visa is that, as an unlawful non-citizen, [the applicant] becomes liable under s198 of the Act to removal from Australia as soon as reasonably practicable, and in the meantime, becomes or continues to be liable to detention under s189 of the Act, provided that removal is practicable in the reasonably foreseeable future.

75.    I am also aware that if a cancellation decision is made under s501BA, there would be significant restrictions on [the applicant]'s ability to apply for another visa. In particular, I understand that [the applicant] would be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to [the applicant]. Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to [the applicant] as a result of a cancellation decision under s501BA, with the effect that his visa would remain cancelled under s501. This would mean that without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), in response to an invitation.

76.    In circumstances where [the applicant] would generally be prevented from making a further application for a protection visa, and no protection findings have been made, s197C(3) of the Act would not be engaged to preclude [the applicant]'s removal from Australia.

77.    Further, following a cancellation decision, if the non-citizen was permitted by a Minister to make a valid application for a protection visa, the non-citizen would not be liable to be removed while their application was being considered. If a protection finding was made in the course of considering any such application for a protection visa, [the applicant]'s removal to the country in respect of which that finding is made would not be authorised or required (unless one of the exceptions in s197C(3)(c) were to apply).

78.    I am aware that if a protection finding is made, but [the applicant] is not granted a protection visa, he would, not be removed to Portugal unless he requested removal, the decision in which the protection finding was made is quashed or set aside, or a decision was made under s 197D(2) that he was no longer a person in respect of whom any protection finding would be made: ss 197C, 197D and 198.

79.    The legal effect of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, the non-citizen must be released from immigration detention.

80.    Pending any future full assessment of relevant claims by [the applicant], I have not given this consideration weight in my consideration of visa cancellation under s501BA.

24    For the purposes of ground two, the relevant portion of the reasoning, concerned, under the broad consideration of the risk the applicant posed to the Australian community, the degree of “remorse and rehabilitation”. Given the breadth of the challenge, it is worthwhile extracting the whole, relevant portion of the decision:

(b) Remorse and rehabilitation

41.    [The applicant] has previously engaged in rehabilitation related to his drug and alcohol use while incarcerated in 2009 and 2010, including engaging with counsellors and detoxing Attachments C E and J. [The applicant] also engaged with his General Practitioner and a Clinical Psychologist following his release from immigration detention Attachment P. It is however of concern that it was accepted on behalf of [the applicant] in 2018 that he was still 'susceptible' to relapse, he reported intermittent illicit drug use whilst in immigration detention and no recent risk assessments are available Attachments C, E and J.

42.    [The applicant] also participated in rehabilitation while incarcerated in relation to the sexual assault without intercourse offence. However, as the AAT did, I consider it serious that he appears to have historically demonstrated, and continues to demonstrate a lack of acceptance, a high level of denial and limited empathy for the victim Attachment B, E and F.

43.    It is apparent that [the applicant] has now received some treatment for his mental health Attachment I, J and P. This treatment was first commenced whilst [the applicant] was in immigration detention and reports confirm that he requires treatment and monitoring Attachments E and I.

44.    I have considered [the applicant]'s assertions that time, including time in the community, has now proven that he is no risk Attachment P. I do not however accept that assertion. [The applicant]'s history demonstrates that there were previously periods of time in which he did not offend. I also consider it significant that between November 2022 and November 2023 there was ongoing litigation relating to the cancellation of [the applicant]'s visa such that he would have been particularly motivated not to offend during that period.

Conclusion on risk to community

45.    The Australian government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens.

46.    I have found that the nature of [the applicant]'s conduct is very serious. I have further found that sexual offending and harm arising from deliberately lighting fires has the potential to cause serious physical and psychological injury and financial harm to members of the Australian community, if repeated. On balance, I agree with the findings of the AAT that there is a low to moderate risk of reoffending Attachment E. In light of the nature and seriousness of [the applicant]'s offending, I find that the harm that would be caused if they were to be repeated, is so serious that any risk is unacceptable.

47.    A number of factors, as outlined above, may have contributed to [the applicant]'s offending behaviour. I however remain concerned that [the applicant] is not rehabilitated. [The applicant] has a history of repeat offending and has engaged in limited rehabilitation. I have found that on balance there remains a low to moderate ongoing risk that [the applicant] will reoffend.

48.    Considering the nature and seriousness of [the applicant]'s conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of [the applicant]'s reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.

Ground One

25    By ground one, the applicant asserted that the Minister’s decision was legally unreasonable in that he failed to consider (or deferred consideration of) the applicant’s protection claims, despite the applicant being unable to make a protection application by reason of being barred by operation of s 48A of the Act. The essence of this complaint is that because the applicant was “not free” to bring his protection application (having withdrawn it upon the Minister’s legal representative’s confirming they did not hold instructions to challenge the Tribunal’s second decision to revoke the cancellation of the applicant’s visa), such that the Minister’s decision is therefore “unjust and capricious”, and no decision-maker could rationally arrive at the conclusion that it was appropriate for his protection claims to be deferred given the applicant was statutorily barred from making such an application (without the Minister exercising a power to lift that bar).

26    In addition, under the umbrella of ground one, the applicant submitted that the Minister, having identified the legal consequences of a cancellation decision as including being liable to removal from Australia (s 198) and detention until removal (s 189), it was unreasonable for the Minister not to give those consequences any weight. It was submitted, no decision-maker acting reasonably or logically, could have concluded that the direct and immediate consequences of the decision (as prescribed under the statute), namely continuing detention and liability for removal, “did not weigh to at least some extent against cancelling his visa”.

The Minister was not required to “consider” the applicant’s “protection claims”

27    The applicant’s contention is premised on the proposition that the Minister was required to “consider” the applicant’s protection claims. As referred to above, the Minister has a broad discretionary power, under s 501BA to cancel a person’s visa. I do not accept that in the circumstances of this case, the Minister was required to consider the applicant’s protection claims. The authorities, relied upon by the applicant, at their highest, state that the Minister is bound to take into account the legal consequences of the decision. By considering the legal consequences of the decision, this means considering the Act and its operation in making a decision (which is effectively what Parliament has prescribed to be the legal consequences of the Minister’s decision): NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [9] per Allsop CJ and Katzmann J.

28    Care must be taken when plucking out paragraphs from different migration decisions, arising at different times and in different factual circumstances along the ever-changing migration law jurisprudential arc. Cases such as NBMZ concerned a failure to consider and confront a relevant consideration, namely the binary relational legal consequence of Australia’s obligation under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 33 and Australia’s (then) policy of mandatory detention, namely indefinite detention.

29    The applicant submitted that in the present circumstances, he is a person making a claim that engages Australia’s international non-refoulement obligations and does not have the option to apply for a protection visa, such that, those claims need to be considered (meaning realistically engage with the bases for the applicant’s feared harm if forced to return) by the decision-maker. This requirement that those claims were required to be considered was said to be established by two authorities: Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 at [61(g)] and AJN23 v Minister for Immigration, Citizenship and Multicultural [2024] FCAFC 103; 304 FCR 586 at [33]. In AJN, the Full Court repeated what had been said in NBMZ and other decisions. The Court was not assisted by any pointed submission as to anything about the facts of this case or legal argument that went beyond this reference. The circumstances of AJN were not analogous and thus the reasoning not of any real utility save for a restatement of the high level of principle relied upon.

30    In Le, the Full Court summarised (noting the danger of over-prescription) the considerations to be taken into account when exercising powers under ss 501(1) or 501(2) regarding Australia’s non-refoulement obligations and the prospect of indefinite detention. At [61(g)] it is stated:

the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or s 501(2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances.

31    However, the Full Court’s reasoning in Le, rises no higher than is contained in this paragraph and where the Full Court had already acknowledged at [58] that it did not consider that, in exercising the power under s 501(2), the Minister must in every such case take into account the prospect of indefinite detention as an aspect of the legal consequences of such a decision.

32    Furthermore, the Court must not lose sight, in the context of reading previous authorities, of the statutory framework in which the decision was made.

33    Reliance was also placed on Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582. The applicant submitted that the Minister’s decision finding that the applicant did not pass the character test by operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act, and deciding to exercise his discretion under s 501BA of the Act, was attenuated with jurisdictional error by reason of having deferred the assessment of the applicant’s protection claims despite the fact that the applicant was, in the language of the plurality in Plaintiff M1, not “free to apply for a protection visa” because he was barred from applying for a protection visa. In the result, no rational decision-maker would arrive at the conclusion to defer the applicant’s protection claims, as there is no later deferred time at which the applicant’s protection claims will be considered.

34    I do not accept that the reasoning in Plaintiff M1 assists the applicant’s contention. The plurality in Plaintiff M1 found that whilst the Minister’s delegate was required to read and evaluate the visa applicant’s representations as to a potential breach of Australia’s international non-refoulement obligations, those matters were not mandatory relevant considerations where the visa applicant remained free to apply for a protection visa: at [9].

35    The applicant seized upon the following aspect of the plurality’s reasoning concerning the decision-maker’s approach to non-refoulement, depending on whether representations were made or not, at [28]–[30]:

28    Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject-matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.

29     Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.

30    Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

(Footnotes omitted, emphasis added.)

36    The applicant submitted that in the present circumstances, he is a person making a claim that engages Australia’s international non-refoulement obligations and does not have the option to apply for a protection visa, such that, those claims need to be considered (meaning realistically engage with the bases for the applicant’s feared harm if forced to return) by the decision-maker and cannot be deferred. I do not accept that this submission flows from the plurality’s reasoning. Furthermore, and separately, I do not accept the submission is a true characterisation of the facts. In this case, the applicant was not free to apply for a protection visa because the Minister had rejected his protection visa application and the applicant had chosen not to persist with a review of that decision and therefore not pursue to his protection application.

37    There is a disconnect in the applicant’s thesis. The plurality’s reasoning cannot be read as having the effect, as the applicant would wish it to, that in the event that a person is barred from bringing a protection claim, that the Minister must consider (and not defer) his or her protection claim. Rather, all that it says, is that, where it remains open that a person may bring a claim under domestic law, the claim may be considered by the decision-maker under s 501CA(4). It is not mandatory that it be considered. Further, another “available outcome” is for the decision-maker to defer the assessment. I do not accept, by extension (of the reasoning at [28]–[30] and [42]), that the plurality’s holding embraces a circumstance where a person no longer is free to apply for a protection visa (because he or she has exhausted their rights under domestic law or after their application being rejected, not persisted with any review process) such that the decision-maker was required to consider and not defer their protection claims.

38    Further, it is clear from the portions of the plurality’s reasoning in Plaintiff M1 relied upon by the applicant that in exercising his or her statutory powers, a decision-maker is not required to take account of claims by a non-citizen to engage Australia’s un-enacted non-refoulement obligations. The mechanism for raising such claims is via the protection visa process. As observed earlier in their reasoning, at [20]:

Australia’s international non-refoulement obligations, as distinct from the criteria for the grant of a protection visa, are addressed separately and later in the scheme of the Migration Act in the context of removal. That distinction is important. In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter the domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.

(Footnotes omitted).

39    Therefore, to the extent that the applicant has made or is making claims to engage Australia’s non-refoulement obligations outside of the protection visa process, those claims are not required to be taken into account as part of the discretionary decision-making under powers such as s 501CA. By extension, I consider this to be the case with respect to the Minister’s powers under s 501BA.

40    Similarly, I accept the Minister’s submission that, at M[73] of the Minister’s reasons, the Minister notes his delegate considered the applicant’s claims (to the extent that they sought to engage Australia’s non-refoulement obligations outside the protection visa process) and found that the applicant is not a person in respect of whom Australia owes obligations under the Migration Act. It cannot be accepted that the effect of Le, at [61(g)], is that claims that have been made outside of the protection visa process must be taken into account by a decision-maker in exercising power under s 501BA, where that person was no longer able to make an application for a protection visa. Further, even if that were the effect of the holding in Le, I accept the submission of the Minister, that such a proposition would be inconsistent with the reasoning of the plurality of the High Court in Plaintiff M1 (at [20], [29] and [33]): Australia’s unenacted international non-refoulement obligations do not form part of Australian law and cannot give rise to judicial review for jurisdictional error.

41    The applicant then changed tack and submitted that the representations to the delegate in 2022, requesting revocation, do suggest a claim of non-refoulement under domestic law. I do not accept this submission. The claim could not have been made under domestic law because Australia’s domestic law provides a mechanism for engaging Australia’s protection obligations namely by the protection visa application process and that process had been exhausted upon the delegate’s decision having been made under s 65.

42    Further, the applicant sought to deploy an observation of Rangiah J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [40], concerning to the plurality’s reasoning in Plaintiff M1, which was as follows:

In Plaintiff M1/2021, it was held at [30] that a decision-maker is entitled to defer consideration of whether the applicant was owed non-refoulement obligations on the basis that it was open to the applicant to apply for a Protection visa. The plurality observed at [39] that, “it nevertheless may be necessary … to take account of the alleged facts underpinning that claim where those facts are relied upon … in support of there being ‘another reason’”. The plurality made no suggestion that a decision-maker is relieved from their obligation to take into account the legal consequences of the decision under consideration where they decide to defer such consideration.

43    I do not consider that this general observation made in Singh is inconsistent with my reasoning. Further, Justice Rangiah contemplates a circumstance of deferment, which for the reasons given below, do not apply in this case. Further, his Honour was not called on to consider circumstances that are analogous with this case. His Honour ultimately determined that no weight had been attached to the legal consequences of the decision by reason of a misconstruction of s 501CA(4) of the Act and Parliament’s intention purported intention.

The Minister did consider the legal consequences of his decision but determined not to give weight to those consequences

44    In any event, the Minister considered (and did not defer considering) the inevitable and direct legal consequences of his decision (as opposed to consequences which were merely probable or arguable) as required: per Jagot J at [51] in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 and endorsed at [101] per Perry J in BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 on appeal.

45    As is evident from the relevant extracted portion of the Minister’s reasons above, the Minister, in 11 paragraphs considered, the relevant portions of the Act and their operation, by virtue of the applicant’s particular circumstances, in making a decision, namely what Parliament has prescribed to be the legal consequences of the Minister’s decision under s 501BA. Commencing at M[69], the Minister accounted for the combined effect of ss 189 and 198, that unlawful non-citizens must be removed from Australia and in the meantime until removed, unlawful non-citizens are liable to detention. The same legal consequence is acknowledged later at M[74]. This reasoning crystallises the direct and the inevitable legal consequences of making a decision under s 501BA(2) to cancel the applicant’s visa, namely the applicant will be taken into immigration detention and removed from Australia under s 198 of the Act as soon as reasonably practicable. The Minister came to this conclusion, by reason of the applicant, not being able to avail himself of a protection from removal, by operation of s 197C(3) because no such “protection finding” had been made: M[70]–[72], [76].

46    Furthermore, the Minister did not defer consideration of the applicant’s protection claims. Those claims had been made by the applicant in the context of his application for a protection visa. I accept the submission of the Minister, that on the facts, that application was finally determined (within the meaning of s 5 of the Act) either from 18 July 2019 (when the delegate refused the PV application) or 14 May 2024 (when the Tribunal decided that it did not have jurisdiction to review the delegate’s decision because the applicant had withdrawn his application for review). There is no need to decide at which point in time, as the result remained the same: No “protection finding” had been made in the course of considering a protection visa application.

47    The Minister’s reasoning exposes that the Minister was aware that (a) the applicant’s protection claims had been assessed (at M[73]); (b) no “protection finding” (within the meaning of s 197C(3) of the Act) had been made (at M[76]); and (c) s 48A of the Act would prevent the applicant from making a further protection visa application subject to the Minister lifting the bar by exercising his power in s 48B (at M[75]–[76]). The Minister considered these matters because they bore upon one of the direct consequences of the Minister’s decision, namely removal from Australia: If the applicant were covered by a protection finding, then removal, of course, could not be effected in respect of the country to which that protection finding related.

48    As submitted by the Minister, it is difficult to see how the Minister could rationally have concluded that the applicant’s protection claims, which had been rejected by a delegate of the Minister, militated against cancellation of his visa.

49    The Minister then considered, (at M[75]–[79]), whether the applicant could apply for another visa and the impact that another visa application might have on him referring to the statutory bar in s 48A which precluded the applicant from making a further protection visa application unless the bar were lifted by the Minister under s 48B to permit another application to be made. At M[77], the Minister reasoned that if the applicant were permitted by the Minister to make another protection visa application, then he would not be liable to be removed while that application is being considered. What follows thereafter, in M[77], M[78] and M[79], concerned what would happen if another protection visa application were made, and the Minister made a protection finding in the applicant’s favour, and, giving effect to the reasoning in NZYQ, the applicant would be released from detention.

50    The applicant further submitted that the Minister’s conclusion that “Pending any future full assessment of relevant claims by [the applicant], I have not given this consideration weight in my consideration of visa cancellation under s 501BA” is indicative of the Minister deferring consideration of the applicant’s protection claims.

51    I do not accept this is how the Minister’s reasons should be read. When read fairly and in the context of the preceding reasoning at M[69]–[79], “no weight” was given to this consideration namely the legal consequences of the decision. This is so because it was clear that the Minister was aware that the applicant would remain in detention until removed and it was not known at that time for how long. Further, it was not known (by virtue of the possible actions contemplated in M[77] and M[78]) whether the applicant would make a request under section 48B, whether the Minister would allow such a request to be made, when any protection visa application would be decided, and what the outcome of such a process might be.

52    It is apparent that “Pending any future full assessment of relevant claims by the applicant” concerned, those immediately preceding possible steps and the Minister appeared unwilling to speculate about the likelihood of those matters materialising, and thus the time that the applicant would remain in detention before being removed from Australia or released following the grant of a visa was not known. The Full Court has recognised no error in such an approach of attributing no specific weight to matters which are not known: RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [36]–[37].

53    Accordingly, contrary to the applicant’s submission, the Minister considered the direct and inevitable legal consequences of his decision to cancel the applicant’s visa. There was no deferral of any claims for protection under the Act. The Minister considered that those claims had been considered and rejected: M[73].

54    The applicant further submitted that it was legally unreasonable and irrational for the Minister to defer assessment of the applicant’s protection claims in the circumstances of this case, which purportedly placed the applicant in a position of not being “free to apply for a protection visa under the Migration Act”. For the reasons already expressed, I do not accept that the Minister was required to consider the applicant’s protection claims again and that, in any event, the Minister did not defer such a consideration: The Minister had considered and rejected the applicant’s claims. The applicant had not pursued the review process.

55    Furthermore, I do not accept, that the applicant was able to submit that the Minister’s decision was legally unreasonable, “capricious” or illogical by reason of the applicant claiming to have withdrawn his protection application upon confirmation by the Minister that it would not be challenging the Tribunal’s decision. First, there was no such evidence before the Minister. Secondly, that evidence, for the reasons expressed below, is not admitted. Thirdly, even if it were admitted it does not support the alleged fact underlying the applicant’s thesis namely, that the applicant withdrew his merits review application of the Minister’s refusal of the protection visa application because of the Minister’s indication that no review would be sought of the Tribunal’s decision to revoke the cancellation.

The Minister’s decision was not unreasonable nor illogical in not giving the legal consequences any weight

56    The applicant further submitted that it was also unreasonable for the Minister, having identified the legal consequences of a cancellation decision as including the applicant being liable under s 198 of the Act to removal from Australia and in the meantime liable to detention under s 189 of the Act, to not give the legal consequences of the decision any weight.

57    The applicant conceded that the weight afforded to particular considerations is traditionally a matter for the decision-maker, but submitted that freedom was subject to the implied limitation that a decision be made within the bounds of rationality and reasonableness: Plaintiff M1 at [24]–[25]. In this case however, the applicant submitted, no decision-maker acting reasonably, or logically, could have concluded that the direct and immediate statutorily prescribed consequences of the decision, which comprised the continuing detention of the applicant and his liability for removal as soon as reasonably practicable, did not weigh to at least some extent against cancelling his visa.

58    As already reasoned above, the Minister did not place weight on this consideration given the extent of the unknown. The Minister reasoned, at M[73]–[79], as submitted by Counsel for the Minister which I accept, that the Minister should be understood to be saying that the applicant’s being taken into immigration detention under s 189 of the Act was a neutral factor because it was not known whether and when there would be “any future full assessment of relevant claims”, which in turn would affect the length of any detention. That is, it was not known (a) whether there would be any request under s 48B; (b) whether there would be any favourable exercise of power under s 48B; (c) whether a valid application for a protection visa would be made; and (d) when any such application would be finally determined. It was therefore entirely a matter of speculation (as at the date of the Minister’s decision) as to how long the applicant would be held in immigration detention. Given the length of detention was uncertain as a consequence of the uncertainty surrounding the timing of (a) to (d), there was no error in the Tribunal not attributing any specific weight to that factor.

59    Furthermore, I do not consider the reasoning of Rangiah J in Singh assists the applicant. Rangiah J’s careful reasoning is not critical of such an approach nor authority for the proposition that it is not open for the Minister to not attribute any weight to the legal consequences of the decision. Rather his reasoning exposes error, in so not attributing weight, because of a misunderstanding of Parliament’s intention regarding the effect of s 501CA(4). Singh does not stand for the proposition that any time that a non-citizen spends in immigration detention is a matter that must be given weight in his or her favour in the exercise of any statutory power under the Act. Unlike Singh, the Minister’s reasons in this case are transparent as to why he considered the fact of the applicant being taken into detention to neither weigh in favour of, nor weigh against, the applicant (see M[73]–[80]).

60    In any event, as submitted by the Minister, despite the applicant’s claims for protection having been rejected by a delegate of the Minister, the Minister, in making his decision under s 501BA(2), placed weight (in favour of not exercising the power in s 501BA(2)) on the applicant’s subjective fear of harm in the context of his assessment of the impediments that he may face if removed to Portugal (M[90]) and also placed weight (in the applicant’s favour) on other impediments that he might face if removed from Australia (M[81]–[89]).

Ground Two

61    By the applicant’s second ground, he asserts that the Minister’s decision is affected by jurisdictional error due to unreasonable, illogical and/or irrational reasoning and findings in assessing the risk that the applicant posed to the Australian community.

62    The applicant submitted that s 501BA(2) of the Act has a temporal component which requires the Minister to form a state of mind about the national interest at the time that the power is exercised, not what it might have been at some earlier point in time. The applicant submitted that the temporal requirement in s 501BA(2)(b) does not change depending on the extent to which the material before the Minister is out of date. The more dated the material, the more problematic it may become 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. The applicant relied upon LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; 179 ALD 29 at [48] per Charlesworth J in this respect:

48    The Minister was not obliged to invite the applicant to comment on the proposed cancellation of his visa or provide more up to date information. It nonetheless remained necessary for the Minister to make a finding about what the national interest required as at the date of the decision and not at some earlier time. The temporal requirement in s 501BA(2)(b) does not change depending on the extent to which the evidentiary material before the Minister in a given case is out of date. 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.

63    The applicant submitted that the rules of natural justice do not apply to a decision made under s 501BA(2) and it is permissible for the Minister to exercise the power without affording the affected visa holder an opportunity to be heard. However, as Charlesworth J explained in LJTZ at [100]:

… if that course is taken, a practical consequence may be that there is an absence of evidence (or at least a gap in the evidence) 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 Minster.

64    The applicant submitted that the Minister identified the protection of the Australian community as a relevant consideration in determining whether cancelling the applicant’s visa was in the national interest. It was submitted that the Minister’s assessment of this consideration is affected by unreasonable processes of reasoning and findings.

65    The applicant identified four purported errors that were said to affect the Minister’s consideration of the protection of the Australian community in determining whether cancelling the applicant’s visa was in the national interest.

66    Each alleged error arose in the context of the Minister considering the risk, the applicant posed, to the Australian community and in particular the likelihood of him reoffending in the future. As part of the Minister’s assessment of this likelihood, consideration was given to the applicant’s level of remorse and the extent of his rehabilitative steps. The four purported errors may be briefly summarised in the following way: (a) that the Minister expressed purported concern, at M[41], as to the lack of recent risk assessments when the Minister had declined to seek information post-dating the Tribunal’s decision; (b) that the Minister inferred negatively that the applicant “continues” to demonstrate a high level of denial and limited empathy for the victim, at M[42], when the Minister’s finding was made on stale, dated material: The Minister’s decision was eight months after the Tribunal’s decision; (c) related to (a) and (b), the Minister’s finding (at M[47]) that there remained a low to moderate risk that the applicant would reoffend, arose where the Minister had not given the applicant an opportunity to inform him of any rehabilitative steps after the Tribunal’s decision; and (d) despite the temporal requirements of s 501BA, the Minister failed to address the applicant’s period of living in the community.

67    For the reasons which follow this ground must fail.

68    It is evident from this summary that what is critical to these purported errors, said to give rise to a finding of legal unreasonableness, is that the Minister made his decision, eight months after the Tribunal’s decision and on the basis of material that was before the Tribunal.

69    Section 501BA(2) expressly confers power on the Minister to make a decision to set aside a favourable decision of the Tribunal or a delegate of the Minister, and to cancel a visa that has been granted to a non-citizen, without affording the non-citizen natural justice: s 501BA(3). The Minister is authorised to make a valid decision on the basis of stale information, as observed by the Full Court in EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; 298 FCR 492 at [44]. An obligation to have regard to the most up-to-date material is only applicable “where the material is essential to the exercise of power, or in other words, it must relate to a mandatory consideration”: Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758 at [55]. As Bromberg J in Chetcuti, observed at [57]:

… There is therefore no room to imply from ‘the subject matter, scope and purpose’ (Peko-Wallsend at 45) of the Act, that the Minister's decision must be made on the basis of material provided by the affected person being taken into account at all, let alone that the most recent of material so provided must be taken into account.

70    None of the applicant’s complaints about the Minister’s assessment of his risk to the Australian community gives rise to an error in the decision, let alone establishes that that assessment was the product of legally unreasonable findings or reasoning.

Purported error one

71    The first purported error concerned how the Minister considered the applicant’s “remorse and rehabilitation” at M[41]–[44] of his reasons. The Minister’s reasons at M[41] are given in the following terms:

41. [The applicant] has previously engaged in rehabilitation related to his drug and alcohol use while incarcerated in 2009 and 2010, including engaging with counsellors and detoxing Attachments C, E and J. [The applicant] also engaged with his General Practitioner and a Clinical Psychologist following his release from immigration detention Attachment P. It is however of concern that it was accepted on behalf of [the applicant] in 2018 that he was still 'susceptible' to relapse, he reported intermittent illicit drug use whilst in immigration detention and no recent risk assessments are available.

(Emphasis added.)

72    The applicant submitted that the Minister’s approach of declining to seek information post- dating the Tribunal’s decision, and then expressing concern that no recent risk assessments are available, was legally unreasonable. It was purportedly legally unreasonable because the absence of recent risk assessments was treated as an adverse factor, and was a direct consequence of the Minister’s decision not to afford the applicant natural justice prior to cancelling his visa.

73    I do not accept that this is how the Minister’s reasons can be read, when those reasons are read in context. The Minister, under the heading of “Risk to the Australian community”, identified the two serious forms of offending, the offence of sexual intercourse without consent and to cause or set fire to the property of another: M[37] and M[38]. The Minister then listed the factors contributing to the applicant’s past conduct, which included, amongst other things, that the applicant “has committed serious offences while under the influence of drugs and alcohol, and that the evidence before [him] indicates that [the applicant] has had a longstanding substance abuse issue”: M[40]. The Minister then considered, at M[41], by reference to evidence that was before the Tribunal in November 2023, the applicant’s rehabilitative steps regarding drug and alcohol. The content of the impugned paragraph, at M[41], comprises a summary of the reference material, from the Tribunal’s statement of reasons dated 13 November 2023 to revoke the decision to cancel the applicant’s visa.

74    To the extent that reference is made in the last sentence of M[41] to there being “no recent risk assessments available”, this is a statement of fact, and not a purported negative inference as suggested by the applicant. Rather, as the Minister submitted, it comprises a statement that the Tribunal in November 2023, did not have before it any more recent assessment of the applicant’s risk of recidivism, despite the applicant having been given an opportunity to provide material in support of his application for review.

75    This occurs where the applicant had been on notice, from the delegate’s reasons (15 August 2022), that the delegate had understood that the applicant remained “susceptible to relapse”. At D[50], the delegate noted the following with respect to the applicant’s rehabilitative efforts:

I have given consideration to [the applicant’s] rehabilitative efforts and note that his 2018 court representative states that his incarceration assisted him to detox and abstain from drug use. While [the applicant] remains susceptible to relapse, the pre-sentence report notes that there are programmes available to target relapse prevention…..

(Emphasis added.)

76    Then over a year later, the Tribunal, at T[46], noted the following aspects of the Minister’s submission (with additional observations from the Tribunal):

…

•    The Applicant has had a long-term issue with illicit drug use that commenced in 1997. The applicant has used cannabis, amphetamine, and crystal methamphetamine. He attended courses for his drug use in 2009 and 2010 which appear to have had no long term impact on his habit. He has again claimed to have successfully rehabilitated from drugs in 2018, although even then he was described as being “susceptible to relapse”.

•    In closing submissions, the Respondent [the Minister] noted that the most recent evidence of the Applicant’s using drugs, was six years ago, and that there was no other records that are before the Tribunal for which the Applicant accepts that he was using illicit drugs. The Tribunal observes that the Applicant has however admitted to subsequent drug use, including intermittent substance use in immigration detention up to at least April 2020. In an International Health and Medical Services (IHMS) report dated 11 August 2020, it was noted at “his Health Induction Assessment in March 2019, [the Applicant] disclosed a history of substance use and has been reported to have intermittent, mild substance use while in immigration detention”. On 28 May 2020, the Applicant “advised an IHMS psychiatrist that he had been abstinent from substance use for one month”.

•    The Applicant was warned by the Department in 2010 that visa cancellation could be reconsidered in case of further offending, but the Applicant committed six subsequent offences for which he was convicted in 2018. The Tribunal accepts the Respondent’s submissions that the warning does not appear to have had any long-lasting deterrent effect, which means that the Tribunal should not lightly accept any claim made by the Applicant that he would not reoffend.

…

(Emphasis added.)

77    The Tribunal then ultimately concluded, noting more recent evidence, the following at T[47]:

The Tribunal is satisfied that the cumulative evidence indicates that the Applicant has a lengthy criminal history involving sexual offending, violence and risky behaviour, and that he has limited insight and empathy. The Tribunal acknowledges the Applicant’s efforts to rehabilitate, including his recent attendance at the Illawarra Sexual Health Service, seeing a psychologist since early 2023, seeing his general practitioner since November 2022, and seeking a psychiatrist. However, the Tribunal is guarded regarding the long-term efforts of the Applicant’s rehabilitation.

(Emphasis added.)

78    Accordingly, when reading the Minister’s reasoning, informed by the Tribunal’s reasons, at M[41], it is clear that the Minister was echoing the Tribunal’s sentiments, with some circumspection, regarding the applicant’s susceptibility to relapse in the evidence that was before the Tribunal and the applicant’s history. The Tribunal’s reasons confirm the accuracy of this statement as to the lack of risk assessments regarding illicit drug use.

79    The applicant sought to rely on the following portion of the reasoning of Charlesworth J, at [99]–[100], in LJTZ:

99    Particular [2.7] is to the effect that the finding that the applicant had made no rehabilitative attempts in relation to alcohol was affected by unreasonableness or illogicality because it was a finding not open to be made in light of the materials referred to.

100     That argument should also be accepted. Again, it must be emphasised that it is permissible for the Minister to exercise the power in s 501BA(2) without first affording the affected visa holder an opportunity to be heard. However, if that course is taken, a practical consequence may be that there is an absence of evidence (or at least a gap in the evidence) 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 Minster. 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. I am satisfied that errors of those kinds occurred in the applicant's case.

(Emphasis added.)

80    However, I do not accept that one is able to read the Minister’s reasoning as, incorrectly, proceeding on the basis that he had before him everything that the applicant had to say on the topic to the present day. Rather, the Minister, relied, as he was able to, on the material that was before the Tribunal, from eight months before. The submission that it was unreasonable for the Minister not to afford procedural fairness but then to express concern that no recent risk assessments were available, misreads M[41] of the Minister’s reasons: The Minister was not saying that he was not able to reach a state of satisfaction about the national interest because the most recent risk assessment had been conducted five or six years earlier.

81    Rather, the Minister observed, in the context of the assessment of the applicant’s risk to the community, that the most recent risk assessment was conducted five or six years ago in 2018, and referred to an acceptance on the part of applicant that he was susceptible to relapsing into illicit drug use at that time. This echoed what the delegate and the Tribunal had found. This was, notwithstanding that the reconstituted Tribunal made its decision in November 2023.

Purported errors two and three

82    The applicant submitted that, secondly, the Minister considered it “serious” the applicant “appears to have historically demonstrated, and continues to demonstrate a lack of acceptance, a high level of denial and limited empathy for the victim”. In this respect, the applicant referred to M[42] and M[47] of the Minister’s reasons:

42.    [The applicant] also participated in rehabilitation while incarcerated in relation to the sexual assault without intercourse offence. However, as the AAT did, I consider it serious that he appears to have historically demonstrated, and continues to demonstrate a lack of acceptance, a high level of denial and limited empathy for the victim

…

47.    A number of factors, as outlined above, may have contributed to [the applicant’s] offending behaviour. I however remain concerned that [the applicant] is not rehabilitated. [The applicant] has a history of repeat offending and has engaged in limited rehabilitation. I have found that on balance there remains a low to moderate ongoing risk that [the applicant] will reoffend.

(Emphasis added.)

83    It was submitted that it can be inferred from the word “continues”, at M[42], that the Minister drew erroneously an adverse inference in respect of the applicant’s present day remorse without obtaining present-day evidence from him, citing LJTZ at [100] (as above), and [104].

84    The applicant submitted that, thirdly, in finding there “remains a low to moderate ongoing risk that [the applicant] will reoffend”, at M[47], the Minister reiterated concern that the applicant “is not rehabilitated” and “has engaged in limited rehabilitation”. Again, the challenge is based upon the Minister’s awareness that the applicant had not been given an opportunity to inform the Minister of any rehabilitative efforts undertaken since the Tribunal’s decision, and ought reasonably to have known the information in relation to the applicant’s rehabilitative efforts was likely to be incomplete.

85    It is my view, consistent with the Minister’s submission, that these complaints collide with the operation of s 501BA(3). The Minister was entitled to form a view (as at the date of his decision) about the applicant’s rehabilitation prospects based on material pre-dating the reconstituted Tribunal’s decision. The Minister was not obliged to obtain information that post-dated the November 2023 decision. This complaint does not sound in legal unreasonableness. Further, it has not been established by the applicant that the information relied upon by the Minister was outdated accordingly, the adoption of the reasoning in EUF20 may not be appropriate in this case. However, even if it were, the holding in EUF20 is clear, the Minister was not obliged to obtain more recent information, “the statutory scheme contemplates that a decision may be made on the basis of a less than complete picture”: at [64].

86    For similar reasons, to those above, I do not accept that the Minister, misunderstood the state of the evidence. The Minister was again relying on the evidence, as at the time of the Tribunal’s decision, eight months earlier and again echoing sentiments expressed by the delegate and then the Tribunal. The Minister had before him a copy of the sentencing judge’s remarks which described the applicant’s conduct as “opportunistic”, in light of the applicant saying to the victim “I just couldn’t help myself”: Attachment B, page 9.

87    The delegate had, under the heading “(b) Remorse and rehabilitation”, referred to the sexual assault offence, and to the applicant’s purported surprise at the victim’s allegations at the time, for which the delegate had observed, at D[47]:

…. I consider [the applicant’s] continued attempts to justify his abhorrent behaviour as indicative of limited insight into the adverse effect of his behaviour upon the victim.

88    After receipt of the delegate’s reasons, the applicant, in his submissions to the Tribunal, dated 16 February 2022, stated, with respect to the sexual assault conviction:

These [charges] occurred in the context of a personal relationship he had with the victim at the time. [The applicant] believed that the victim was consenting and was very surprised by the allegations, however in order to avoid a trail (sic) in his hometown of Wollongong which is a regional area …he pleaded guilty.

89    The Tribunal, then reasoned, as referred to above, at T[47], that it was satisfied that the cumulative evidence indicated that the applicant had a lengthy criminal history involving sexual offending, violence and risky behaviour, and that he had limited insight and empathy.

90    The Minister formed a view, as to the applicant’s rehabilitation prospects regarding sex offending, on the basis of “Attachments B, E and F” being respectively the 2007 sentencing remarks of Judge Conlon in the District Court and the 2018 remarks of Magistrate Stoddart in the Local Court, the Tribunal’s November 2023 reasons and documents that the applicant placed before the Tribunal (which included the applicant’s submissions referred to above). The Minister was able to form that view on material which pre-dated the Tribunal’s decision. Such reliance on information of that kind does not lead one into the bounds of unreasonableness given the nature of the statutory scheme, referred to above: EUF20 at [64]. The applicant’s reliance on LJTZ is misguided. In that case the Minister stated that consideration had been given to material when it had not and it was not before him: at [50]. In that case the Minister had in his possession material that was dated and treated that material as though it were up to date and had selective regard to it: at [85]-[86]. Further at [86], more up-to-date material (actually or constructively in the Minister’s possession) that contradicted that earlier information was ignored. In that case the Minister “proceeding from the fictional footing that the applicant's dated statements about his past circumstances represented all that he had to say about his current circumstances, and in reasoning from the absence of evidence about the outcome of medical treatment to the positive conclusion that there were none”: at [106]. Here the Minister had considered all material before him on the issue, did not say that he had considered material which he had not and was not mistaken as to the currency of the material before him.

Purported error four

91    The applicant submitted that, fourthly, despite the temporal requirements of s 501BA requiring the Minister to give genuine consideration to issues he considered relevant at the time of the Minister’s decision, the Minister did not address the applicant’s period living in the community since the Tribunal’s decision when considering the protection of the community. The applicant submitted, with respect to the temporal element under s 501BA, that there was a lack of engagement with the period following the Tribunal’s decision, even though the applicant had been living in the community at that time. The applicant referred the Court to [44] of the Minister’s reasons:

I have considered [the applicant]’s assertions that time, including time in the community, has now proven that he is no risk Attachment P. I do not however accept that assertion. [The applicant]’s history demonstrates that there were previously periods of time in which he did not offend. I also consider it significant that between November 2022 and November 2023 there was ongoing litigation relating to the cancellation of [the applicant]’s visa such that he would have been particularly motivated not to offend during that period.

(Emphasis added.)

92    The applicant’s fourth complaint overlooks the Minister’s findings. The Minister was aware, as at M[10] of his reasons “On 13 November 2023, the AAT decided in substitution that the mandatory cancellation of [the applicant]’s visa should be revoked pursuant to s 501CA(4) of the Act (AAT decision).” Therefore, the Minister was aware that the visa was reinstated in November 2023. By operation of the power under s 501BA, the Minister was entitled to not afford the applicant natural justice and not give the applicant an opportunity to provide up-to-date evidence, which, assuming it existed, had bearing upon his risk of re-offending for the period November 2023 to July 2024.

Additional matters

Admissibility ruling

93    The applicant sought to rely on the evidence of his instructing solicitor, Ms Jermaine Joseph Alfaro, affirmed on 4 December 2024. That affidavit annexed correspondence as between Ms Alfaro and the applicant and the Australian Government Solicitor. The Minister objected to the evidence on the basis that material was not before the Minister at the time of the impugned decision under s 501BA was made, relying on AIX20 v Minister for Home Affairs [2020] FCA 1640 at [14] per O’Callaghan J. In addition, even if a claim of constructive knowledge were made out, constructive knowledge was insufficient to give rise to jurisdictional error in a s 501BA context, relying on Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1113; Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; 306 FCR 156.

94    The applicant sought to rely on this correspondence to support the following submission, supportive of his first review ground, that it was “particularly unjust and capricious to defer consideration of” the applicant’s protection claims where the Minister was aware the applicant had withdrawn his protection visa review application in the Tribunal following the reinstatement of his visa only after the Minister’s representative’s confirmed that they did not hold instructions to seek review of the Tribunal’s decision revoking the mandatory cancellation of the applicant’s visa. Essentially, the submission was premised on there being evidence that the applicant only brought to an end his protection claim as a consequence of the Minister not seeking judicial review of the Tribunal’s decision to revoke the previous cancellation decision. Assuming that the evidence establishes this, which I am not persuaded that it does, I do not consider that this evidence would be relevant in any event given it was not before the Minister. I do not accept that it was constructively before him by reason of the information being relayed to the Australian Government Solicitor and even if it was, I do not accept that it could sound in a claim of jurisdictional error.

Suppression application

95    The applicant submitted that this Court ought not publish his name by reason of s 91X of the Act, or alternatively, ought make a suppression order under to the same effect pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth).

96    Section 91X of the Act provides:

91X     Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 2)

(1)    This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if the proceeding relates to a person in the person’s capacity as:

(a)     a person who applied for a protection visa; or

(b)     a person who applied for a protection-related bridging visa; or

(c)     a person whose protection visa has been cancelled; or

(d)     a person whose protection-related bridging visa has been cancelled.

(2)    The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.

(3)     In this section:

application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.

97    By email correspondence from the applicant’s legal representative to my Chambers, the applicant advanced reasons as to why s 91X (1) is invoked in the proceeding such that the Court must make the proposed pseudonym order. The applicant’s contention was that his application for review of the Ministers’ decision asserts error in deferring assessment of his protection claims, bringing his proceeding within the meaning of a proceeding that relates to his capacity as “a person who applied for a protection visa”. The applicant referred to the “litigation history in this Court involving the applicant, as well as the AAT proceedings” and the decision in HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3675.

98    At hearing, the applicant pressed his application for suppression and submitted that as he was a person who had previously applied for a protection visa, and his application before this Court is therefore caught by s 91X(1)(a). The Minister agreed that a pseudonym order should be made, but rejected that this was the applicable provision. The Minister submitted that the proceeding before this Court was said to be not one which related to his capacity as a person who applied for a protection visa, but where the applicant had merely applied for one in the past. The Minister relied upon ECE21 v Minister for Home Affairs [2021] FCA 1447 at [7]–[9] per Jackson J, in which it was submitted that his Honour held it is not enough to simply point to the fact of the applicant having previously made an application for a protection visa, and that s 91X should not be given a broad application. However, his Honour made the orders under ss 34AF and 37AG(1)(a) on the basis that it was necessary to make as there was a real risk of serious harm to the applicant and that the risk will be appreciably increased if the order is not made: at [9]. His Honour’s conclusions on suppression were not disturbed on appeal: ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422.

99    I am not satisfied that s 91X is engaged in this proceeding. I agree with Jackson J in ECE21 that s 91X is intended to have a limited operation. I observe that the chapeau to s 91X(1) indicates that the provision is limited in a directed way as to how it is meant to operate.

100    However, I was satisfied that the order should be made, and the order was made by consent on 4 March 2025 that pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the grounds in ss 37AG(1)(a) and (or) 37AG(1)(c), the name of the applicant in proceeding NSD 1078 of 2024 is not to be disclosed and he is to be referred to by the pseudonym CMP25.

Conclusion

101    For the above reasons, the application is dismissed with costs.

Associate:

Dated:    14 May 2025