Federal Court of Australia

Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 496

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for a review of a migration decision is dismissed.

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

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

introduction

1    The applicant seeks judicial review of the decision of the respondent (Minister), made pursuant to s 501BA(2) of the Migration Act 1958 (Cth) (Act), to cancel his Class SN Subclass 190 Skilled Nominated visa.

2    The visa was initially cancelled by a delegate of the Minister on 20 November 2019 on “character grounds” under s 501(3A) of the Act. That cancellation was mandatory because the applicant had a “substantial criminal record” as defined by s 501(7)(c) and was serving a sentence of imprisonment for offences against laws of the Commonwealth and the Northern Territory.

3    The applicant made representations to the Minister seeking a revocation of the cancellation of the visa under s 501CA of the Act. That request was refused by a delegate on 6 April 2020. The delegate’s refusal was set aside by the Administrative Appeals Tribunal on 30 June 2020 (AAT decision).

4    Approximately 3 years and 11 months later, on 31 May 2024, the Minister personally decided to set aside the AAT decision and cancel the visa pursuant to s 501BA(2) of the Act (501BA decision). The applicant challenges the 501BA decision on three grounds which, in essence, may be described as follows:

(a)    The exercise of the power in s 501BA(2) of the Act is constrained by an implied time limit and the Minister failed to exercise that power within a reasonable time.

(b)    The Minister failed to take into account a relevant consideration, being the effect of the delay between the AAT decision and the decision under s 501BA(2) of the Act.

(c)    The Minister’s satisfaction that the cancellation of the visa was in the “national interest” within the meaning of s 501BA(2)(b) of the Act was not supported by logical grounds.

statutory framework

5    The Minister’s exercise of power under s 501BA(2) to personally cancel a visa is the last in a series of steps in Pt 9, Div 1 of the Act connected with the mandatory cancellation of a visa on “character grounds”.

6    The starting point is s 501(3A) of the Act which provides:

501    Refusal or cancellation of visa on character grounds

…

(3A)     The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

7    A person does not pass the character test “because of the operation of … paragraph (6)(a)” if the person has been sentenced to a term of imprisonment of 12 months or more: Act, s 501(7)(c).

8    As soon as practicable after making a decision under s 501(3A) (cancellation decision), the Minister must give a person a written notice that sets out the cancellation decision and particulars of the “relevant information”: Act, ss 501CA(1), (2) and (3)(a). The person must also be invited to make representations to the Minister about revocation of the cancellation decision: Act, s 501CA(3)(b). A representation under s 501CA(3)(b) must be made within 28 days after the person is given the notice and particulars of the relevant information: Migration Regulations 1994 (Cth), reg 2.52(2)(b).

9    If the person makes representations in accordance with the invitation, the Minister (or their delegate) may revoke the cancellation decision if satisfied that the person passes the character test or there is another reason why the cancellation decision should be revoked: Act, s 501CA(4) and s 496(1).

10    If a delegate of the Minister decides under s 501CA(4) not to revoke a cancellation decision, an application may be made to the Tribunal for a review of that decision: Act, s 500(1)(ba). Where, as here, the decision not to revoke a cancellation decision relates to a person in the “migration zone” the application must be made within 9 days after the day on which the person was given written notice of the decision in the manner prescribed: Act, ss 500(6B) and 501G.

11    Section 501BA of the Act is engaged when the Tribunal decides to revoke a cancellation decision (revocation decision) and provides as follows:

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 ART;

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 by application under Part 5

(5)     A decision under subsection (2) is not reviewable by application under Part 5.

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

12    The Court has jurisdiction to review a decision of the Minister under s 501BA(2) of the Act on the grounds of jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) with respect s 75(v) of the Constitution; see also at [3], [5] and [37] (Gleeson CJ) and at [160]-[163] (Callinan J).

grounds of review

Ground One

13    By his first ground of review, the applicant contends that the 501BA decision is attended by jurisdictional error because s 501BA(2) of the Act is constrained by an implied time limit – that the power be exercised within a reasonable time – with which the Minister failed to comply.

14    The source of the implied time limit is said to be the “ordinary rule” expressed by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533, that where no time is specified in a statute for doing an act authorised or required by the statute, the act must be done within a reasonable time.

Koon Wing Lau

15    Koon Wing Lau relevantly involved a challenge to the validity of certain deportation orders made under the Immigration Act 1949 (Cth).

16    By s 4(1) of the Immigration Act, the Minister could issue “a certificate of exemption in the prescribed form authorising the person named in the certificate (being a prohibited immigrant or an immigrant who may be required to pass the dictation test) to enter or remain in” Australia.

17    Sub-section 4(4) relevantly provided that:

Upon the expiration or cancellation of any such certificate the Minister may declare the person named in the certificate to be a prohibited immigrant and that person may thereupon be deported from the Commonwealth in pursuance of an order of the Minister.

18    An issue arising in the proceeding was whether after the expiration or cancellation of a certificate under s 4(4) the Minister may, without any limitation of the time that elapses, make a declaration that a person is a prohibited immigrant and order their deportation. Justice Dixon answered that question at 573-574 as follows:

The word “upon” in the expression “upon the expiration or cancellation” does not, I think, mean immediately upon and, as the Supreme Court of New South Wales has decided, it does mean “after”: Ex parte Lesiputty; Re Murphy [(1947) 47 S.R. (N.S.W.) 483; 64 W.N. 113]

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

(Emphasis added)

19    Justice Dixon did not identify the source of the “ordinary rule”, but Williams J stated (at 590):

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

(Citations omitted)

20    The parameters of the “ordinary rule” are not further elucidated by the reasons for judgment in Koon Wing Lau or the decision of Folkhard v Metropolitan Railway Co (1873) L.R. 8 C.P. 470 to which Williams J referred in the passage above. The applicant instead principally relies on two decisions, said to be illustrative of the respect in which the rule is to be applied: CPCF v Minister for Immigration and Border Protection & Anor (2015) 225 CLR 514; [2015] HCA 1 and KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108.

CPCF

21    The issue in CPCF was the scope of the power in s 72(4) of the Maritime Powers Act 2013 (Cth) to detain a person intercepted on a vessel in Australia’s contiguous zone and take them to another country irrespective of whether Australia had an agreement with that country to receive the person.

22    The resolution of that question, for Kiefel and Keane JJ, required consideration of the application of the “ordinary rule” stated in Koon Wing Lau to s 72(4) of the Maritime Powers Act. Sub-section 72(4) provided:

A maritime officer may detain the person and take the person, or cause the person to be taken, to a place (the destination).

23    Justice Kiefel described the operation of the “ordinary rule” as follows (at [313]):

Where no time requirement is provided by a statute for the doing of an act, the law will imply a requirement that it be done as soon as reasonably practicable, at least where such an implication is possible.

(Emphasis added, footnotes omitted)

24    Her Honour found that “s 72(4) does not admit of that possibility” because to comply with an obligation to take the person to a place and disembark them as soon as reasonably practicable would “render nugatory” the choice provided for in s 72(4) as to the places where a person may be taken from the point of interception: ibid. That said, Kiefel J was prepared to imply a requirement that the decision where to take the person be made within a reasonable time and that the time taken to reach the chosen destination be reasonable. The point of distinction was that the latter exercises of power did not “dictate the choice of destination”: at [314].

25    Justice Keane also concluded that “s 72(4) does not require that the power to detain and take must be exercised to discharge a detained person at the closest point of land”: at [454]. But his Honour took a different approach to the application of the “ordinary rule” to the construction of the provision. This reflected an emphasis on s 31 and s 32 of the Maritime Powers Act, which prescribed the purposes for which the power in s 72(4) could be exercised: at [450]-[451] and [453]. Those purposes relevantly included ensuring compliance with the Act: at [450].

26    Viewed in that statutory context, Keane J found that “the application of the ordinary rule that a power must be exercised within a reasonable time” required regard to be had “to the purpose for which it was conferred and the circumstances in which it falls to be exercised”: at [453]; see also at [451]. Thus, what was “a reasonable time for the exercise of the power in s 72(4) could not be determined simply by the adoption of the destination best suited to minimise the duration of the detained person’s detention”: at [454]. On the facts of CPCF, such an approach would, Keane J outlined, produce the “absurd result” that the person would be required to be taken to Australia, which would contravene the prohibition in s 42 of the Act that a person not travel to Australia without a visa that is in effect: at [454]; see also at [413].

KDSP

27    The issues for resolution in KDSP relevantly included whether the “ordinary rule” expressed in Koon Wing Lau applied to s 501A(2) of the Act, such that the lawful exercise of the power in that section was constrained by an implied time limit, being that the power must be exercised within a reasonable period.

28    Sub-section 501A(2) relates to an “original decision” by a delegate of the Minister or the Tribunal not to exercise the power to either refuse to grant a visa or to cancel a visa that has been granted: Act, s 501A(1).

29    The sub-section provides as follows:

501A    Refusal or cancellation of visa – setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

…

Action by Minister—natural justice applies

(2)     The Minister may set aside the original decision and:

(a)     refuse to grant a visa to the person; or

(b)     cancel a visa that has been granted to the person;

if:

(c)     the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)     the person does not satisfy the Minister that the person passes the character test; and

(e)     the Minister is satisfied that the refusal or cancellation is in the national interest.

30    Justice Bromberg found that the “ordinary rule” did not apply to s 501A(2): at [113]. That conclusion was grounded in an analysis of the location of “the s 501A(2) power to refuse to grant a visa within the scheme of the Act”: at [114]. This included s 65 of the Act, which imposes a compellable duty on the Minister to grant or refuse a visa the subject of a valid application: ibid.

31    It was uncontroversial that the duty in s 65 was to be performed within a reasonable time and that s 501A was an “element” of the discharge of that duty. That was because whilst the source of the power for the act of refusing a visa is located in s 65 it is also located in s 501A(2): at [114] and [123]-[124].

32    Nonetheless, his Honour rejected the contention that it followed that a time limit also applied to s 501A(2) of the Act outlining that (at [125]-[126]):

… whilst the duty imposed by s 65 is to be performed within a reasonable time, the obligation upon the Minister to perform that duty does not lapse by the effluxion of time. The Minister must either grant the visa or refuse to do so.

The idea that it was intended that whilst the obligation to perform the s 65 duty does not lapse by the effluxion of time but an available source of power for the discharge of that obligation does, is unattractive. There is nothing to support such an implication either in the text of the Act or by reason of any discernible legislative policy.

33    Justice Bromberg did, however, go on to observe at [127] that:

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

(Emphasis added)

Additional authorities

34    The applicant also referred to the decision of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection & Anor (2014) 253 CLR 219; [2014] HCA 34 at [28] and [34] (French CJ, Hayne, Crennan, Kiefel and Keane JJ) and that of Moshinsky J in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [61]. Those decisions do not, however, materially illustrate the application of the “ordinary rule” beyond the cases to which I have referred to above. The application of the “ordinary rule” to s 501BA(2) has also been raised, but not decided, in Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24, Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266, GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 and Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471.

How is the “ordinary rule” to be applied?

35    The parties agree that whether s 501BA(2) is subject to an implied time limit turns on a proper construction of the section having regard to its text, context and purpose: SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ).

36    It is necessary to decide how the “ordinary rule” is to be applied as part of that process of statutory construction.

37    The applicant submits that the “ordinary rule” applies such that if there is a statutory provision where a power is enlivened upon the happening of a particular event then, subject to the text, structure and purpose of that Act, an implied time limit may be imposed on the exercise of that power.

38    The Minister disputes that the “ordinary rule” establishes an overarching principle of general application. In written argument, the Minister contended that the Court would not read words into a provision to fill in gaps, or absent any clear necessity: Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [43] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). In oral argument, a more nuanced position was advanced, namely that the “ordinary rule” is an available principle of interpretation but is simply a tool to assist in the process of statutory construction.

39    I adopt the explanations given by Kiefel and Keane JJ, outlined at [23] and [26] above, as to how the “ordinary rule” is to be applied. That is because those explanations reconcile the “ordinary rule” with orthodox principles of statutory construction such as those stated in SZTAL.

40    It must be acknowledged that their Honour’s construction of the relevant provision differed in some respects. But it does not follow that their explanations are incompatible. That is reflected in their shared view as to what s 72(4) of the Maritime Powers Act did, and did not, require. To the contrary, in each judgment, there is an acknowledgement that a temporal limit must, as a matter of statutory construction, be capable of implication. That was made explicit by Kiefel J in the passage to which I have already referred. It is implicit in the statement by Keane J at [451] of CPCF that it is a “principle of interpretation that ordinarily applies” (emphasis added).

41    What the judgment of Keane J adds, is an explanation that, the application of the “ordinary rule” and determination as to what is a reasonable time in a particular statutory and factual context requires consideration of the purpose for which the power is exercised. That additional explanation accords with the views expressed in cases such as BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [24]-[25] (Bromberg J), to which I turn below.

42    I therefore proceed on the basis that s 501BA(2) of the Act will be subject to a temporal limitation if, having regard to the text, context and purpose of the provision, such an implication is available.

Is s 501BA(2) subject to an implied time limit?

43    Sub-section 501BA(2) of the Act vests in the Minister a non-compellable discretionary power to set aside a revocation decision and cancel a visa if the criteria stated in sub-paragraphs (a) and (b) of the section are satisfied.

44    The power is “draconian” overriding the executive process of an independent and external merits review by the Tribunal and expressly excluding any obligation to afford the person affected natural justice: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2022) 294 FCR 270 at [14] (Mortimer J) and [39] (Bromwich J).

45    The exercise of the power is, however, dependent on an earlier event – either a delegate of the Minister or the Tribunal making a revocation decision: Act, s 501BA(1). That is one contextual aspect, which supports the application of a temporal limitation: c.f., KDSP at [121]; Koon Wing Lau at 573-574 and 590.

46    The “pivotal” basis for the exercise of the power is satisfaction that the cancellation is in the “national interest”: Tereva at [39]. That is an “essentially political evaluation” although the Minister must reach that state of satisfaction reasonably and on a correct understanding of the law: Tereva at [20] and [39] and Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

47    The fact that the power in s 501BA(2) “is not unbounded” and, indeed, its exercise is subject to a requirement of reasonableness, is another contextual aspect which supports the implication of a temporal limitation: Graham at [57]; Tereva at [20].

48    The Minister argues that it is inherently unlikely that the Parliament intended to confer such a power, exercisable only where the visa cancellation is in the national interest, but at the same time restrict that power so as to make it available only for a limited time and in circumstances where the limitation was not referred to expressly and was in respect of a non-compellable power. Such a construction would, the Minister submits, negate the protective purpose of the power. It is also said that such a construction would create uncertainty in the administration of the Act.

49    It may be accepted that to read s 501BA(2) as requiring the Minister to make a decision to cancel a visa as soon as reasonably practicable after a revocation decision is made is to adopt an interpretation that strains the language in which the section is cast and insists on a level of inflexibility in the practical exercise of the power which one would be slow to attribute to the legislation. But it is not necessary to adopt that interpretation to avoid the unpalatable conclusion that the power in s 501BA(2) of the Act may be exercised at some indefinite time in the future. That conclusion is avoided by an appreciation that the power is exercisable by the Minister in the “national interest” and by the application of the ordinary rule that the power must be exercised within a reasonable time having regard to the purpose for which it was conferred and the circumstances in which the power falls to be exercised: c.f., CPCF at [453].

50    Understood in that way, the implication of a temporal limitation does not render the power nugatory or undermine its protective purpose. To the contrary, what is a reasonable time within which to exercise the power in s 501BA(2) requires regard to be had to the protective “national interest” purpose for which the power is conferred and the circumstances in which it falls to be exercised.

51    I am not persuaded that the non-compellable character of the power weighs against the implication. Justice Bromberg expressly acknowledged in KDSP at [127] that an implication may be possible in respect of such a power. The Minister is not required to exercise the power under s 501BA(2). However, if the Minister elects to do so, this must be within a reasonable time having regard to the “national interest” and the factual circumstances then before the Minister.

52    Moreover, I am not satisfied that the imposition of a temporal limitation would create uncertainty in the administration of the Act such that the “ordinary rule” ought not to be applied. The power is already conditioned by a requirement that it be exercised reasonably: Tereva at [20]. The implication of a temporal limitation simply adds another dimension to that requirement of reasonableness, namely that the power in s 501BA(2) be exercised within a reasonable time.

53    It follows that I am satisfied that, having regard to its text, context and purpose, the “ordinary rule” applies to s 501BA(2) of the Act. The exercise of the power under that section is subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister.

Did the Minister make the 501BA decision within a reasonable time?

54    The test for determining whether an implied time limit for making an administrative decision was exceeded was stated by Fisher J in Thornton v Repatriation Commission (1981) 35 ALR 485 at 492 as follows:

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance, it is, on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity.

55    It is for the applicant to show that there is unreasonable delay affecting the jurisdiction to make the decision. If the applicant establishes a delay which calls for an explanation, then the persuasive onus shifts to the Minister to provide a reasonable explanation for a delay: AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27 at [59] (Besanko and Thawley JJ).

56    What is a reasonable time is objectively determined in light of all of the circumstances made relevant by the legislative context: BMF16 at [24]-[25] citing Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203; [2001] FCA 138 at [28] (Ryan, Drummond and Hely JJ).

57    The applicant does not contend that the entirety of the period from the AAT decision to the 501BA decision calls for an explanation. His case is confined to the period commencing on 11 February 2022. Approximately 2 years, 3 months and 20 days elapsed between that date and the 501BA decision being made.

58    The Minister’s evidence with respect to that period may be summarised as follows:

(a)    On 11 February 2022, there was a meeting between the Department of Home Affairs and the advisors to the Honourable Alex Hawke MP. At that time, both the Honourable Alex Hawke MP and the Honourable Karen Andrews MP were appointed to administer the Department: c.f., Acts Interpretation Act 1901 (Cth), s 19. An outcome of that meeting was that a draft s 501BA submission regarding the applicant was to be sent to the Honourable Alex Hawke MP for consideration. There is no evidence as to whether, and if so when, the draft s 501BA submission was provided to the either the Honourable Alex Hawke MP or to the Honourable Karen Andrews MP.

(b)    On 11 April 2022, the Federal Government went into caretaker mode following the announcement of the election. There followed a change of Government on 11 May 2022.

(c)    On 1 June 2022, two Ministers were appointed to administer the Department: the Honourable Andrew Giles MP and the Honourable Clare O’Neill MP. The process engaged when there is a change in Minister includes briefing and detailed consultations to agree related processing arrangements, which significantly impacts on the areas reliant on Ministerial direction and decision making.

(d)    On 22 December 2022, the work of the Department was impacted by the judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203, which required a review of approximately 800 cases and disrupted the business of the Department until mid-February 2023.

(e)    On 23 January 2023, Minister Giles made a new direction regarding visa refusals and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA of the Act (Direction No. 99). Direction No. 99 commenced on 3 March 2023. It is usual practice when a new direction is introduced that case officers concentrate on matters that can be finalised prior to the direction commencing with a focus on resolving cases involving non-citizens in immigration detention. Changes in direction generally have a significant impact on Departmental case officers and case work, both immediately prior to the direction taking effect and, in the weeks following its commencement.

(f)    In June 2023, the work of Departmental officers was disrupted by the decisions in Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91 and Minister for Immigration, Citizenship and Multicultural Affairs v Thornton (2023) 276 CLR 136; [2023] HCA 17, both of which required case officers to place existing cases on hold.

(g)    On 17 October 2023, the Department provided the Minister’s office with a schedule of cases about which direction was sought as to whether the Minister wished to consider exercising the powers under s 501A or s 501BA of the Act. The schedule included the applicant’s case. On 31 October 2023, Minister Giles’ office requested the draft s 501BA submission with respect to the applicant.

(h)    On 1 November 2023, the Department contacted Northern Territory Parks and Wildlife requesting any additional information or allegations regarding the applicant. On 6 November 2023 Northern Territory Parks and Wildlife advised that they were not aware of any new allegations or additional criminal activity. An updated national criminal history check regarding the applicant was received by the Department on 20 November 2023.

(i)    On 30 November 2023, the Department provided the applicant with a Direction No. 99 and further information relevant to the notice of intention to consider setting aside the revocation decision and cancelling the visa, issued on 8 December 2020. The further information consisted of a joint media release dated 20 February 2021 and an undated case report from the Commonwealth Director of Public Prosecutions accessed on 29 March 2023. The applicant was invited to comment on that material.

(j)    On 25 March 2024, the applicant’s representative provided the Department with further material, including a submission and letters of support, updating the Department on the applicant’s circumstances since he first provided a substantive response in February 2021 (further procedural fairness response).

(k)    On 15 May 2024, the draft s 501BA submission was finalised and went through various internal Departmental clearance processes. It was saved to the applicant’s file on 23 May 2024 and provided to the Minister’s office on 30 May 2024.

(l)    On 31 May 2024, the Minister made the 501BA decision.

59    I am satisfied that the timeframe put in issue by the applicant is such as to call for an explanation by the respondent. As much is made apparent from the Minister’s acknowledgement in written submissions that “there were periods of relative inactivity” and his election to put on evidence to explain the delay.

60    I am not satisfied, however that the implied reasonable time limit for making the 501BA decision was exceeded. The explanation provided by the Minister, considered in light of the circumstances made relevant by the Act, including the purpose for which the power in s 501BA of the Act is exercised, establish, on the balance of probabilities, that the delay is justified: c.f., Thornton at 492; BMF16 at [24]-[25] and CPCF at [450]-[454]. That is for the following reasons.

61    One of the circumstances made relevant by the Act is that the power in s 501BA is to be exercised personally by the Minister. There were, during the relevant period, two different Ministers who decided to consider whether to exercise the power to set aside the revocation decision and cancel the visa. An examination of the explanation for the delay cannot be divorced from that statutory and factual context.

62    The first, (then) Minister Hawke, was to consider the draft s 501BA submission following the meeting between the Department and his office on 11 February 2022. The evidence is silent as to whether, and if so, when the draft s 501BA submission was provided to the Minister. In any event, the time that elapsed between the meeting and the election being called (two months) is not so long as to characterise the delay as because of neglect, oversight or perversity given the nature and significance of the decision.

63    There is then a period of approximately 18 months between the election being called and the applicant’s case being brought to the attention of Minister Giles’ office on 17 October 2023. Putting to one side the period attributable to the election (including the time taken to appoint the new Ministers), the delay during this timeframe was on the part of the Department rather than the Minister.

64    The applicant contends that the explanations for this period do not provide sufficient specificity as to the impact of the stated events on his case. I am not persuaded that, to be reasonable, the explanations must do so. Another circumstance made relevant by the Act is that the Minister and the Department have competing powers, duties and functions. As appears from [58(c)] to [58(f)] above, during this period there were other imposts on the work of the Department, including with respect to its engagement with the new Ministers. It may be accepted that the explanations for the period between 1 June 2022 and 22 December 2022 (at [58(c)] above) and June 2023 to 17 October 2023 (at [58(f)] above) with respect to the impact of those matters are at a level of generality. Further, there is no specific explanation for the period from the end of March 2023 (following commencement of Direction No. 99) and June 2023. But given the competing powers, functions and duties of the Department, I am not satisfied that the explanations are so general, or the two-month period for which there is no specific explanation is so extensive, as to support a finding that the delay during this period was in consequence of neglect, oversight or perversity.

65    The second, (then) Minister Giles, requested the draft s 501BA submission on 31 October 2023. That request followed the meeting between the Department and his office on 17 October 2023. There was then a period of approximately 7 months before the 501BA decision was made. During that period there were a series of steps taken by the Department to afford the applicant a further round of procedural fairness, update and finalise the draft s 501BA submission before providing it to the Minister.

66    The applicant takes issue with the time taken to provide the applicant with Direction No. 99 and the notice of intention (approximately one month); to finalise the draft s 501BA submission following receipt of the applicant’s response (approximately seven weeks) and then provide it to the Minister’s office (16 days).

67    The longest delay in this period is that taken to finalise the draft s 501BA submission. The further procedural fairness response was substantive, comprising a submission and additional material, including numerous letters of support and documents with respect to the applicant’s self-employment. Given that, and the nature and significance of the decision to be made by the Minister, I am satisfied that the time taken by the Department to finalise the draft s 501BA decision is justifiable. Similarly, given the competing powers, duties and functions of the Department, I am not satisfied that the period taken by the Department to issue the notice and provide the draft s 501BA submission to the Minister rises to the level of neglect, perversity or oversight.

68    There was no personal delay by the Minister in making the 501BA decision. That occurred on 31 May 2024, one day after the draft s 501BA submission was provided to Minister Giles’ office.

69    It follows that I am satisfied, on the balance of probabilities, that the Minister has provided a reasonable explanation for the delay put in issue by the applicant. Ground one is not established.

Ground Two

70    By his second ground of review, the applicant contends that the effect of any delay between the AAT decision and the 501BA decision was a matter that the Minister was required to, and failed, to consider.

71    It is uncontroversial that the Minister referred, in the 501BA decision, to the fact that over 44 months had elapsed since the AAT decision was made. The specific complaint advanced by the applicant concerns the finding in the 501BA decision that the applicant “is a recidivist offender” and “there is a likelihood that he will re-offend”. The applicant says that the effect of the delay, including the effectiveness of the Northern Territory criminal justice system on rehabilitating and specifically deterring the applicant from engaging in any further criminal conduct were matters that the Minister was required to take into account in determining whether that finding should be made.

72    What factors a decision-maker is bound to consider in making a decision is determined by a construction of the statute conferring the discretion. Where the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39-40 (Mason J).

73    The parties rightly submit that whether the effect of a delay is a mandatory relevant consideration is a separate process of statutory construction to that the subject of ground one. That is material for two reasons:

(1)    First, while the implication of a temporal limitation turns on whether such an implication is available, the implication of a relevant consideration turns on whether such an implication is to be found in the subject matter, scope and purpose of the Act: ibid.

(2)    Second, the implication of a temporal limitation on the exercise of the power in s 501BA(2) requires the Minister to be satisfied that the power is exercised within a reasonable time having regard to the “national interest”. In contrast, the relevant consideration for which the applicant contends would require the Minister to consider the effect of any delay in exercising the power under s 501BA(2) of the Act for that purpose.

74    The applicant relies, in support of the implication, on three matters. First, that the valid exercise of the power is conditional upon a revocation decision being made. Second, the purpose of the power in s 501BA(2) - to ensure that persons who do not pass the character test and in respect of whom the Minister is satisfied that the cancellation is in the national interest, are not permitted to remain in Australia – can only be fulfilled if exercised within a reasonable time. Third, the statutory regime requires promptitude in each of the steps leading to the enlivening of the power in s 501BA.

75    The features of the Act upon which the applicant relies do not support the implication for which he contends. The pivotal, expressly stated, basis for the exercise of the power in s 501BA is the “national interest”. That is a “broad and evaluative” and “essentially political” criterion: Graham at [57]; Tereva at [39]. The breadth of that criterion weighs against a construction that the Minister is required to consider the effect of any delay in making a decision under s 501BA.

76    Ground two is not established.

Ground Three

77    By his third ground of review, the applicant contends that the Minister’s satisfaction that the cancellation of his visa was in the “national interest” within the meaning of s 501BA(2)(b) of the Act was not supported by logical grounds.

78    In dealing with the “national interest” and “remorse and rehabilitation” in the 501BA decision the Minister stated:

I have taken into account MR ESWARAN’S history of significant criminal offending and find that he is a recidivist offender with a large number of convictions. His criminal conduct also includes a disregard for judicial orders and regulatory requirements, including breach of suspended sentence conditions. I acknowledge that Mr ESWARAN has received no further convictions since his release from immigration detention.

Given Mr ESWARAN’s offending history, I find there is a likelihood that he will re-offend. If Mr Eswaran did engage in further criminal conduct of a similar nature, that of offences of taking and trade in wildlife, it would cause environmental and economic harm to the Australian community.

79    The applicant contends that the finding that there is a likelihood that he will reoffend is legally unreasonable because there is no logical deliberative pathway between that conclusion and earlier findings by the Minister that the applicant had not re-offended since his release back into the community in 2020 and expert evidence that he was “extremely chastened by his experience in prison”.

80    The applicant also relies, in support of this ground, on the finding in the AAT decision that the applicant was at low risk of offending and argues that the Minister did not give an explanation, capable of rational justification, as to why he considered the finding by the Tribunal was wrong.

81    The implied condition of reasonableness is not confined to why a decision was made; it extends to how a decision was made. This requires that a decision not only have an intelligible justification but also that it be arrived at through an intelligible decision-making process: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [20]-[21] (Kiefel CJ, Bell, Gageler and Keane JJ). The formation of the requisite state of mind under s 501BA(2)(b) may be invalidated if it is “illogical or irrational in the sense that it could not be formed by a rational or logical person in the circumstances” or “was arbitrary, capricious, irrational or not bona fide”: NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582; [2023] FCAFC 187 at [111] (Derrington J).

82    I am not persuaded that the impugned finding lacked an intelligible justification or that the formation of the Minister’s state of mind was arbitrary, capricious or irrational. That is for two reasons.

83    First, the Minister’s finding that there was a likelihood that the applicant will reoffend was founded on his history of offending. That included the applicant’s most recent offending, which occurred a short time after he was sentenced to a wholly suspended term of imprisonment and comprised wildlife offending on a commercial scale. As the 501BA decision records, while the applicant expressed regret for his actions and their impact on his family, throughout both the criminal proceedings and those before the Tribunal, he maintained that his actions would have been legal had he obtained the correct permits. The Minister considered that this position demonstrated a lack of insight and understanding by the applicant of the gravity of his offending.

84    That Minister acknowledged that the applicant had not reoffended since he re-entered the community in 2020 and the expert evidence recording the impact of the applicant’s prison experience on him. That material was not, however, such as to preclude a rationally formed state of mind that the applicant was likely to reoffend. The matters upon which the Minister relied, as outlined in the preceding paragraph, provided an intelligible basis for the conclusion that he reached.

85    Second, it was not incumbent on the Minister to provide an explanation, capable of rational justification, as to why the Tribunal’s finding as to his likelihood of reoffending was wrong. As Mortimer J outlined in Tereva at [28]:

… In the appellant’s written submissions there is a suggestion that the Minister, in his reasoning, needed to “rebut” the reasoning of the Tribunal. That suggestion cannot be accepted. The power in s 501BA is an override power. While it takes as its jurisdictional precondition a favourable decision of the Tribunal, there is nothing in the text, context or purpose of the provision which supports an implication that the Minister is required to “rebut” the reasoning of the Tribunal. Given the precondition, it may be an error for the Minister not to consider the Tribunal’s reasoning at all. However, the Minister's power is differently conditioned, by the concept of the national interest, and there is no basis to import into the lawful exercise of that power a requirement that the Minister needs to refute the reasoning of the Tribunal. Indeed, this is a feature contributing to the draconian nature of the power. The Minister is empowered, subject to remaining within the boundaries of the concept of the “national interest”, and the boundaries of legal reasonableness and rationality, to simply take an entirely different view of the facts and circumstances to that taken by the Tribunal.

(Emphasis added, footnotes omitted)

86    The applicant does not suggest that the Minister did not consider the AAT decision in making the impugned finding. That the Minister did so is apparent from his reference in the 501BA decision to the Tribunal finding that the applicant “was not open and forthcoming with [the expert] regarding his responsibility for his offending”. But the Minister was not required to rebut the finding made by the Tribunal. The matters upon which the Minister relied, left open a different, but rationally formed conclusion, as to the likelihood that the applicant would re-offend.

87    Ground three is not established.

conclusion

88    The application is dismissed, with costs.

Associate:    

Dated:    16 May 2025