Federal Court of Australia

Kopa v Minister for Immigration and Multicultural Affairs [2025] FCA 524

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time (lodged 22 December 2024) is dismissed.

2.    The applicant is to pay the respondent’s costs of the application to be taxed or agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The applicant, Mr Tyrone Abraham Kopa, a New Zealand national, seeks review of a decision of the respondent, the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s 501BA(2) of the Migration Act 1958 (Cth) (the Act) on 23 September 2024 (the 2024 Decision). The 2024 Decision did two things. First, it set aside a decision of the (then) Administrative Appeals Tribunal (the Tribunal) dated 20 October 2023. In short, that decision revoked an earlier decision of a delegate of the Minister to cancel Mr Kopa’s Class TY subclass 444 Special Category (Temporary) visa. Second, it cancelled the visa held by Mr Kopa.

The need for an extension of time

2    Mr Kopa received the 2024 Decision on 16 October 2024. Accordingly, the time in which he could seek review of that decision (being a “migration decision”: s 5(1) of the Act) as of right expired in late November 2024: ss 477(1), (3) of the Act. Mr Kopa did not meet that deadline. He now comes before the Court seeking, amongst other things, an order under s 477A(2) of the Act that would extend the period in which he could formally seek review of the 2024 Decision.

3    Section 477A of the Act relevantly provides:

477A    Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3)    In this section:

date of the migration decision has the meaning given by subsection 477(3).

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).

(5)     To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

4    That provision, and the authority to exercise the jurisdiction conferred by ss 476A(1)(b)–(c) of the Act, was the subject of recent scrutiny by the High Court of Australia in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Tu’uta Katoa). The observations of Kiefel CJ, Gageler, Keane and Gleeson JJ (at 588 – 589 [11] – [12] and 591 [17]) are of much assistance in the present context:

11    At a high level of generality, it may be accepted that the purpose of a power to extend time is “to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”. However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court’s exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).

12    On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

…

17    … [I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) …, it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. …

(Emphasis added).

5    So too are those of Gordon, Edelman and Steward JJ (at 599 – 600 [40]):

40    … It is, in each case, for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case. Factors that are commonly regarded as relevant to the exercise of the Court’s discretion to grant an extension of time include: the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the “strength or weakness of the case … sought to be advanced and the utility of advancing that case”.

6    Here, Mr Kopa lodged with the Court, on 22 December 2024, both (a) an application for an extension of time under s 477A of the Act (the EoT Application); and (b) a supporting affidavit which detailed, albeit in rather vague and brief terms, why he considered the interests of the administration of justice tended in favour of the grant of that application. In so doing, he met the procedural condition imposed by s 477A(2)(a) of the Act. So much was accepted by Mr Freeburn, counsel for the respondent. Indeed, Mr Freeburn very properly acknowledged that, when one then turns their attention to the language of s 477A(2)(b), the EoT Application disclosed several considerations which favoured the making of the orders sought by Mr Kopa.

7    First, Mr Kopa’s delay was relatively short, being approximately one month: see CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610 [42] – [55] (CZQL); Rere v Minister for Immigration and Border Protection [2018] FCA 846 [18] – [21]; cf GBM18 v Minister for Immigration & Multicultural Affairs [2025] FEDCFAMC2G 552. Second, some explanation was provided for the relevant delay, being that the applicant (a) was “unaware of the 35-day time-frame” imposed by s 477A(1) of the Act; and (b) “faced significant challenges in securing suitable legal representation”. Whilst the former is not, of itself, a satisfactory explanation: see, eg, SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17 [38]; CZQL [56]: the latter is of some weight, even if it is not articulated in detail: but see BBU15 v Minister for Home Affairs [2019] FCA 1324 [7]. Third, and perhaps less relevantly, the implications of the impugned decision are not insignificant to Mr Kopa; that is, he will hold no valid visa and, therefore, be required to return to New Zealand: see, eg, Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410 [31]; see generally MZZGC v Minister For Immigration and Border Protection [2015] FCA 842 [13]. By the same token, the Minister did not suggest they would suffer any degree of prejudice consequent upon the grant of the EoT Application.

8    That being so, it was advanced by Mr Freeburn that the Court ought to nevertheless refuse to exercise the discretion conferred upon it by the chapeau to s 477A(2) of the Act because, were an extension of time to be granted, the proposed grounds of review sought to be advanced by Mr Kopa lacked any “reasonable prospects of success” – even on a reasonably impressionistic level. Relevantly, those grounds were enumerated, albeit not without a degree of variance and informality, in an affidavit and outline of submissions that had been filed by the applicant in late December 2024 and mid-April 2025, respectively (together, the Review Proposal).

9    Given Mr Freeburn’s impugnation of the grounds of the Review Proposal in the context of the EoT Application, it was agreed at the hearing that the most expedient course would be to hear both applications together. That is not an unusual practice: see, eg, Nuuamoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587 [2]: although care need be taken to avoid conflating “the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to a consideration of what was necessary in the interests of the administration of justice”: Tu’uta Katoa, 587 [5]; see, eg, SZTES v Minister for Immigration and Border Protection [2015] FCA 719 [82] – [85]. That is, whilst a nuanced assessment of the substantive merits of the proposed ground(s) of review cannot, in a vacuum, be dispositive of an application made under s 477A(2) of the Act, it may very well give colour to what is meant by the phrase “necessary in the interests of the administration of justice” in s 477A(2)(b), notwithstanding the fact that it goes beyond a “reasonably impressionistic” assessment of the merits of the applicant’s case: Tu’uta Katoa, 591 – 592 [18] – [19]; cf DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475, 493 [68]. For instance, if it is concluded that the grounds of review proposed by Mr Kopa are “hopeless” following a close examination of the Review Proposal and accompanying material, that determination may dissuade the Court from (a) reaching a state of satisfaction that “it is necessary in the interests of the administration of justice to make [an extension of time] order”; and, in turn, (b) granting relief under s 477A(2) of the Act: Tu’uta Katoa, 591 – 592 [18].

The 2024 Decision and the merits of the Review Proposal

10    The 2024 Decision was made pursuant to the statutory power conferred by s 501BA(2) of the Act on 23 September 2024. At that time, s 501BA was drafted 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.

11    On the evidence before the Assistant Minister for Citizenship and Multicultural Affairs (being the decision-maker of the 2024 Decision) (henceforth, the Assistant Minister), it was not in dispute that Mr Kopa (a) had been sentenced to a term of imprisonment of 15 months in October 2022 (for “serious assault police officer by biting spitting etc”); and, therefore, (b) did not pass the Act’s so-called “character test”: see ss 501BA(2)(a), 501(6)(a) and 501(7)(c) of the Act.

12    The Assistant Minister was also satisfied that cancellation of Mr Kopa’s visa was in the national interest (as that phrase was characterised in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, 46 [40] (Plaintiff S156/2013)). As canvassed in greater detail below, in arriving at that state of satisfaction, the Assistant Minister considered the need to protect the Australian community and, in so doing, addressed the seriousness of Mr Kopa’s history of criminal offending and the likelihood that he might re-offend in the future (and the attendant risks to the community if such a likelihood were to eventuate). Due consideration was also afforded to the expectations held by the Australian community of non-citizens and particularly those with “serious character concerns”. Ultimately, it was concluded that:

In the specific case of Mr Kopa, I consider that the physical harm to government representatives and members of the public and the expectations of the Australian community are sufficient basis to consider cancellation of his visa in the National interest.

Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr Kopa’s Class TY Subclass 444 (Special Category) visa is in the National interest.

The proposed grounds of review

13    Before considering the grounds of review which Mr Kopa seeks to advance, it is relevant to note that he was unrepresented and appeared on his own behalf. That said, the documents filed by him had the colour of having been prepared by a person with some knowledge of the nature of administrative review. Though there is no difficulty with that, it is unfortunate that Mr Kopa was not, himself, familiar with the nature of the issues which might arise on a review of the Assistant Minister’s decision, nor the difference between merits review on the one hand and, on the other, judicial review. There is nothing pejorative in that observation, but it merely underscores the difficulty which the applicant encountered in connecting his concerns vis-à-vis the 2024 Decision to any particular jurisdictional error which might serve to vitiate it.

14    Nonetheless, Mr Kopa is obviously an intelligent person and was able to assist the Court in his articulation of those matters in the 2024 Decision with which he took issue. I do not doubt that he feels that that decision was unfair in a number of ways and, particularly so given the success that he previously enjoyed before the Tribunal in October 2023. In particular, he identified his grievances surrounding the Assistant Minister’s determination not to accord him natural justice when making the 2024 Decision. He was also aggrieved by the Assistant Minister’s conclusion that he remained a risk to the Australian community, despite his attempts at rehabilitation. Indeed, Mr Kopa was unable to reconcile his belief that he had transformed himself from the person he had once been, with the conclusion that he now posed a risk to the Australian community. In that respect, he sought to cavil with the weight that the Assistant Minister gave to his prior conduct, being something which he believed was no longer relevant.

15    As has been noted, Mr Kopa filed both an affidavit and an outline of submissions in which he enumerated several proposed grounds of appeal. Though they were not co-extensive, Mr Freeburn took no point about that and, also very properly, responded to all the grounds which arose from both documents. He also generously construed Mr Kapo’s assertions in a manner by which they might be regarded as allegations of jurisdictional error. In that way, Mr Kopa’s assertions were accorded the most favourable construction possible.

Ground 1 – denial of procedural fairness

16    Mr Kopa claims to have been denied procedural fairness. That assertion flows, in substance, from the Assistant Minister having declined to provide him with an opportunity to respond to the potential cancellation of his visa under s 501BA(2) of the Act.

17    A decision made under s 501BA(2) of the Act need not observe the principles of natural justice: s 501BA(3) of the Act: such that “a party affected by the Minister’s decision is not entitled to notice of the exercise of power, to present evidence or submissions, or to be heard in relation to the matter”: Palmer v Minister For Immigration, Citizenship and Multicultural Affairs (2024) FCR 156, 165 [41]. Whilst it was nonetheless open for the Assistant Minister to afford Mr Kopa the opportunity to be heard: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 20 [23]: he expressly refrained from doing so. In those circumstances, and by reason of s 501BA(3) of the Act, the first ground of review advanced by Mr Kopa cannot succeed.

18    As an aside, it may be noted that Mr Kopa struggled, at the hearing, to appreciate the logic that could underlie the statutory negation of any entitlement to natural justice. Whilst this forum is not the place to resolve that confusion, it may be observed that s 501BA(3) was introduced in a context where “natural justice will have already been provided to the non-citizen through the revocation process available under s 501CA [of the Act]”: Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014, [84].

Grounds 2, 4, 5 and 6 – failure to take a relevant consideration into account

The allegations made

19    Ground 2 comprises the allegation that certain evidence of Mr Kopa’s “rehabilitation efforts”, including his “12 months of documented alcohol abstinence, participation in counselling, and anger management”, were not “properly consider[ed]” and “either dismissed or undervalued”.

20    Ground 4 is a complaint that the Assistant Minister placed “disproportionate weight” on Mr Kopa’s past offending, including what was described as “minor” offending, without adequately balancing mitigating factors such as his “long-term residence and strong social ties in Australia, as well as rehabilitation and ongoing rehabilitation”. Ground 5 similarly asserts the Assistant Minister did not “substantively” engage with an earlier finding that Mr Kopa’s “rehabilitation, family ties, and remorse warranted significant weight against visa cancellation”.

21    Gound 6 asserts that the “personal and societal impact” of cancellation of Mr Kopa’s visa was “not adequately balanced”, considering his “integration into Australian society and extensive rehabilitation efforts”.

Framing the allegations made in light of the reasons given

22    Section 501BA(2) of the Act defines the statutory framework within which the 2024 Decision was to be made. One difficulty raised by Mr Kopa’s concerns is that it is not clear whether they take issue with (a) the satisfaction of the Assistant Minister’s state of mind that “the cancellation is in the national interest” under s 501BA(2)(b) (being a subjective jurisdictional fact: see Ali v Minister for Home Affairs (2020) 278 FCR 627, 642 [41]); or (b) the exercise of the discretion conferred by the chapeau to s 501BA(2) to “set aside the original decision and cancel a visa”. That dichotomy can be important: see, eg, Rana v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1002 [7] – [13]: even if, as in this case, both considerations were answered largely by reference to a common series of factors.

23    The extent to which the Assistant Minister grappled with the considerations in s 501BA(2) of the Act is laid bare in a document dated 23 September 2024 and titled “STATEMENT OF REASONS FOR DECISION UNDER SECTION 501BA OF THE MIGRATION ACT 1958 – DECISION BY A MINISTER” (Reasons).

24    Paragraphs [12] – [58] of those Reasons assess whether the cancellation of Mr Kopa’s visa was in the “national interest”. That assessment was predicated upon a consideration of a range of matters including, for example, “protection of the community”, which relevantly concerned the seriousness, frequency and recurrence of Mr Kopa’s offending, including that which brought about the initial cancellation of his visa in October 2022: Reasons [17] – [27]: as well as other offending throughout Australia and New Zealand since 2011: Reasons [28] – [32].

25    In short compass, it was concluded that “Mr KOPA’s unlawful conduct, viewed cumulatively, has been frequent, has increased in seriousness and should be considered ‘serious’” (emphasis in original) (Reasons [33]). The Assistant Minister subsequently said (at Reasons [36]):

36.    I find that given Mr KOPA’s criminal history, the frequency and cumulative effect of his offending, and the seriousness of his most recent offending, Mr KOPA’s offending is serious. I also consider there is a trend of increasing seriousness in the offending as can be seen from the National Criminal History Check dated 1 August 2024 and the New Zealand Police Check dated 18 January 2023.

26    That being so, the Assistant Minister considered that any future offending by Mr Kopa of a similar nature or kind “would have the potential to cause physical and/or psychological injury to members of the Australian community” (Reasons [37]).

27    In his assessment of the “national interest”, the Assistant Minister also paid due regard to the likelihood of Mr Kopa re-offending and considered several factors that “may have contributed” to his conduct, including his personal history, familial relationships and alcohol dependency (Reasons [38] – [43]). In that context, consideration was also afforded to Mr Kopa’s claimed remorse and rehabilitation, as well as statements made by him in 2022 and subsequent conduct (Reasons [44] – [49]). At paragraphs [44] – [45] of the Reasons, the Assistant Minister said:

44.    Mr KOPA entered guilty pleas in relation to the 17 charges for which he was sentenced on 25 October 2022. The sentencing remarks record that the guilty pleas were entered ‘at a reasonable time in the proceedings’ and ‘demonstrate [Mr KOPA] taking personal responsibility.’ The sentencing judge noted that Mr KOPA gave evidence that he felt ‘personally embarrassed and foolish’ and that he intends to abstain from alcohol which was a contributing factor in his offending Attachment D.

45.     In the prisoner conduct report date 9 February 2023 it was noted that Mr KOPA was involved in two offensive behaviour incidents where he failed to comply with numerous directions from custodial staff. He also had an ‘other’ incident during a prisoner on prisoner assault, which was listed as one of the prior offensive behaviour incidents. Attachment E.

28    Ultimately, it was concluded that there was a “low, but not negligible, likelihood” that Mr Kopa would re-offend, but hastened to add that should that risk eventuate, the likely result would be of “physical and/or psychological harm” to members of the wider community (Reasons [52]).

29    Consideration was also given to the “expectations of the Australian community” which were said to encompass the view, inter alia, that “the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct” (Reasons [53] – [54]). That expectation was deemed to apply in the case of Mr Kopa, noting that he had previously engaged in “violence against government representatives” (Reasons [54]).

30    From the foregoing, the Assistant Minister found himself to be satisfied that it was in the “national interest” to cancel Mr Kopa’s visa (Reasons [56] – [58]). In his own words:

57. In the specific case of Mr KOPA, I consider that the physical harm to government representatives and members of the public and the expectations of the Australian community are sufficient basis to consider cancellation of his visa in the national interest.

58. Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr KOPA’s Class TY Subclass 444 (Special Category) visa is in the national interest.

31    Significantly, it is readily apparent that the Assistant Minister also ascribed “due weight” to the aforementioned matters to inform the exercise of the discretionary power conferred by the chapeau to s 501BA(2) of the Act (Reasons [60]). It therefore follows that Mr Kopa’s concerns as to the 2024 Decision may be directed at the formation of the state of mind that cancellation of Mr Kopa’s visa is in the “national interest” and the exercise of the discretion to, in fact, do so. For present purposes, it may be assumed that the factors which vitiate either the formation of the state of the mind or the exercise of the discretion are relatively cognate: see Migrating towards a Principled Approach to Reviewing Jurisdictional Facts (2020) 27 AJ Admin L 70.

Were there any relevant errors?

32    The fundamental difficulty with the complaints ventilated by Mr Kopa is that they ask the Court to impermissibly intrude upon a power which the Commonwealth Parliament has conferred exclusively upon the Executive branch of Government. It is for the Minister, and the Minister alone, to reach a state of satisfaction that the cancellation of Mr Kopa’s visa is in the “national interest”: see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 – 36; Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, 143 – 144, 154 – 155. The Parliament has deliberately given the person holding that office the entitlement to reach the required state of satisfaction. In doing so, it is for the Minister to determine what matters are to be taken into account and, in turn, what weight will be ascribed to them. It is not for the Court to second-guess the “merits” of that evaluation, save in rather specific circumstances: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353, 360; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 – 41 (Peko-Wallsend); see, eg, Morgan v Minister For Immigration and Multicultural Affairs [2025] FCA 266 [27] – [32] (Morgan).

33    To the extent those matters were also taken into account in the exercise of the discretion, it is, again, a matter solely for the Minister to give weight to the relevant circumstances: see AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, 93 [28].

34    Even affording a degree of latitude to the manner of expression of the grounds of review, Mr Kopa’s desire was, in substance, for the Court to review the merits of the Assistant Minister’s conclusions. So much appears by his concerns that the Assistant Minister “disproportionately emphasised”, “undervalued”, “dismissed” and did not “adequately balance” certain matters. These concerns are not matters which the Courts are empowered to consider and those grounds which rely upon them for success have no prospect of securing the relief which he seeks.

35    To the extent that Grounds 2, 4, 5 and 6 raise the suggestion that the Assistant Minister failed to take into account a relevant consideration in the formation of the required state of satisfaction or in exercise of the discretion (see s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and Peko-Wallsend, 40 – 41), they are also incorrect. As to Ground 2, the Assistant Minister (at Reasons [43], [46] and [47]) expressly took into account Mr Kopa’s claim that he (a) had realised the impact of alcohol upon his past conduct; (b) intended to make a complete change; and (c) he had “sought counselling, attended anger management and drug and alcohol sessions and sought guidance from mentors”. The Assistant Minister also took into consideration (at Reasons [49] and [69]) references which had been provided on Mr Kopa’s behalf. It is incontrovertible that these matters were before the Assistant Minister and that they were considered. The onus of establishing that they were not so considered rested upon Mr Kopa: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 616 [67]; SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 [28]: and, in light of the material before the Court, that onus has not be discharged.

36    In relation to Ground 4, the Assistant Minister expressly took into account Mr Kopa’s “ties to Australia” (at Reasons [63] – [72]) as well as his rehabilitation (at Reasons [44] – [49]) – even finding, for example, the former to “weigh moderately against visa cancellation” (at Reasons [72]) – such that any suggestion that these matters were not taken into account cannot succeed.

37    On the assumption that Grounds 5 and 6 raise an allegation that the Assistant Minister failed to account for Mr Kopa’s rehabilitation, remorse, “family ties” and the consequences that could flow from the cancellation of his visa, they too have no prospects. It is clear on the face of the Reasons that he averted to all of these matters in the course of his deliberations (at paragraphs [44] – [49], [63] – [72], [73] – [83]).

38    Further, the allegation in Ground 5 that the Assistant Minister did not “substantively engage[]” with the findings of the Tribunal in relation to his rehabilitation, family ties and remorse, is wrong for two reasons. First, it is factually incorrect. Those matters were canvassed somewhat extensively by the Assistant Minister (see Reasons [46], [47], [48], [65], [68], [69] and [70]). Second, the Assistant Minister is not obliged to assume the findings of the Tribunal are correct (nor find they are incorrect) before exercising the power in s 501BA(2) of the Act. In Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 294, Mortimer J (with whom Bromwich and Thomas JJ agreed) held (at 277 – 278 [28]):

28    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.

39    It is pellucid that the Minister considered the Tribunal’s reasoning. That being so, there can be no basis for concluding that the Assistant Minister erred by failing to make any express finding as to the veracity of that reasoning.

40    In the result, Grounds 2, 4, 5 and 6 of the Review Proposal should be dismissed.

Ground 3 – legal unreasonableness

41    Ground 3 of the Review Proposal expressly alleges that the Assistant Minister “acknowledged a “low” likelihood of re-offending but justified the cancellation [of Mr Kopa’s visa] on speculative harm, lacking concrete evidence” and “failed to rationally connect the evidence of rehabilitation to the conclusion reached”. Given the logic that undergirds the Reasons, these allegations can be said to be directed to the formation of the state of satisfaction, in the Assistant Minister, required by s 501BA(2)(b) of the Act. That said, in light of the rather ambulatory nature of paragraph [60] of the Reasons, they are also necessarily subsumed by his exercise of discretion. In any event, the complaint cannot succeed on either view.

42    The complaint sought to be advanced by Mr Kopa was two-fold. First, the Assistant Minister could not “reasonably” have reached the conclusion that Mr Kopa presented a risk to the Australian community given his rehabilitation. Second, the finding that Mr Kopa presented a “low but not negligible risk” of re-offending could not reasonably support the conclusion that he was a risk to the Australian community. So framed, Ground 3 comprised an allegation of “legal unreasonableness”: s 5(2)(g) of the ADJR Act: and will, accordingly, be treated as such.

43    The concept of some jurisdictional error arising as a consequence of legal unreasonableness is limited (albeit, perhaps not to the extent which it might once have been): see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364 [68], citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The nature of that limitation was helpfully summarised in King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152, where the Full Court observed (at [52] – [55]):

52     … . It was also apparently common ground that findings or reasoning along the way to reaching a conclusion by a decision-maker that are illogical or unreasonable may establish jurisdictional error of that kind: BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [34] (the Court) citing Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124] –[132] (Crennan and Bell JJ). See, also, Minister for Immigration & Border Protection v Sabharwal [2018] FCAFC 160 at [45] (the Court). The following further principles regarding legal unreasonableness may also be considered uncontroversial.

53     Review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. ‘[T]he Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification.’: Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92].

54     Accepting that statutory discretions confer an ‘area of decisional freedom’ a decision may be legally unreasonable if it is shown ‘to be arbitrary or capricious or to abandon common sense’, or if it ‘lacks an evident and intelligible justification’: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] , [76]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Stretton at [2]–[13] (per Allsop CJ).

55     ‘Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same conclusion on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision is one to which the decision maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.’: SZMDS at [135]; DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(4)]. However, ‘to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”’: DAO16 at [30(5)] (and the authorities cited therein).

(see also, and specifically in the context of the discretion conferred by s 501BA(2) of the Act, Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517 [60] – [63]).

44    Moreover, the contention that some finding is irrational or unreasonable is not made out merely because it fails to command universal acceptant of agreement: see, eg, BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420, 447 [144] – [145]; DCP16 v Minister for Immigration & Border Protection [2019] FCAFC 91 [85] – [86]. Nor is it necessarily made out because the underlying reasoning is poor and/or mistaken. As Justice Steward made clear in Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 387, 392 [27], it is reasoning that involves:

27    … irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not - in any way - make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

45    This is not one such occasion. The conclusion there existed a “low, but not negligible, risk” of Mr Kopa re-offending (Reasons [52]) flowed from a reasoned consideration of, inter alia, his history of offending (Reasons [17] – [34]), including that which had previously occurred (a) in New Zealand (on several occasions: Reasons [32]); and (b) following his incarceration in 2022 (Reasons [45]). The Assistant Minister found that that offending, taken collectively, had been frequent, had increased in seriousness and should be considered “serious” (Reasons [33], [35]).

46    The Assistant Minister also took into account several matters that “may have contributed” to Mr Kopa’s offending, including his background and upbringing, as well as the role that alcohol played in the offending (Reasons [41] – [43]). He then addressed, at Reasons [44] – [45], the applicant’s claims of remorse and rehabilitation, which were albeit at odds with his actions towards custodial officers and other prisoners whilst held in detention. The Assistant Minister proceeded to address Mr Kopa’s statement to the Tribunal that he had “realised the extent to which alcohol had influenced his past criminal conduct and expressed a strong intention to make a ‘complete change’ in his behaviour, action and mindset” (Reasons [46]). Mr Kopa had also stated that he had sought counselling, attended anger management and drug and alcohol sessions, and had developed insight into his conduct and understood what it took to become a “productive and respectable” member of society. These submissions, alongside the findings of the Tribunal vis-à-vis Mr Kopa’s criminal conduct and letters of reference written in support of him, were expressly adverted to and considered by the Assistant Minister in his deliberations (Reasons [46] – [49]).

47    In light of the considerations canvassed by the Assistant Minister – being that the criminal history of Mr Kopa involved “serious” and “frequent” offending that spanned several years (and persisted during the relevant period of incarceration) – the finding that there was some risk that Mr Kopa would re-offend (Reasons [52], [92]) is easily comprehensible: see, generally, CKL21 v Minister for Home Affairs (2022) 293 FCR 634, 655 [71] (CKL21). Indeed, it is not controversial that Mr Kopa’s prior offending rendered it objectively more likely that he would re-offend: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 – 575.

48    Thus, not only was the Assistant Minister’s finding a factually justifiable conclusion, it would have been somewhat unusual were he to have determined that there was no risk that Mr Kopa would re-offend. His conclusion on that issue is both logically and intellectually defensible.

49    At the hearing, Mr Kopa repeated his assertions that he was a changed person, and expressed much exasperation that this sentiment had neither been accepted nor acted on by the Assistant Minister. However, it must be remembered that the question before this Court is not whether Mr Kopa’s assessment is substantively correct, but whether the Assistant Minister’s conclusion was “legally unreasonable”. It was not.

50    The second limb of Ground 3 of the Review Proposal was to the effect that the Assistant Minister’s finding that there existed a “low, but not negligible, risk” of re-offending was not sufficient to support the conclusion it was in the “national interest” to cancel the visa of the applicant (or that it should be as a matter of discretion).

51    The difficulty here is that the Assistant Minister had also found the nature of Mr Kopa’s prior offending to demonstrate “a pattern of increasing seriousness” and have “the potential to cause physical and/or psychological injury, and increase[] the risk of transmissible diseases to members of the Australian community, if repeated” (Reasons [35], [51]). Therefore, as the Assistant Minister concluded, even though the likelihood of re-offending was “low”, if that risk were to materialise, the consequence for any victim of the offending could be serious (Reasons [52], [92]). Indeed, it was noted that Mr Kopa’s prior offending demonstrated a pattern of wilful disregard for, and violence against, Government officials (Reasons [17], [23], [30], [35]). In the eyes of the Assistant Minister, such matters pertaining to the nature and seriousness of the offending bore “some weight in support of cancelation [of the visa] being in the national interest” (Reasons [52] (emphasis added); see also Reasons [53] – [55], [57]).

52    That conclusion is not lacking in intelligibility or rationality. Rather, it is one of the logical conclusions which may reasonably have been available to a decision-maker in such circumstances. As was held in CKL21 (at 654 – 655 [69]):

69    … The Court has recognised on many occasions that the seriousness of the applicant’s crime may be sufficient to justify a decision to refuse a visa (having regard to the national interest): see for example Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [79] per Gaudron J; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [86] per French, O’Loughlin and Whitlam JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74] per Kiefel and Bennett JJ; Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [72] per Rangiah J (with whom North J agreed). Given the breadth of the Minister’s discretion to revoke the mandatory cancellation of a visa, the same consideration must also be relevant in that context and is typically taken into account in connection with the Minister’s assessment of the expectations of the Australian community.

53    There was, therefore, a probative basis for the Assistant Minister’s conclusion that a “low” risk of serious offending was sufficient for the purposes of cancelling Mr Kopa’s visa on “national interest” grounds. By parity of reasoning, the same conclusion applies to the extent to which the exercise of discretion was alleged to have been unreasonable.

54    It follows that there is no substance to Ground 3 of the Review Proposal.

A further ground of appeal

55    In his outline of submissions filed 16 April 2025, Mr Kopa advanced a further proposed ground of review being that the Assistant Minister had “conflated general public expectations with the specific legal threshold of national interest”. He states that “the finding that cancellation was in the national interest was not grounded in any specific or immediate threat and thus lacked a rational basis.”

56    To a large extent this ground of review has largely been dealt with above.

57    To that, it may be added that whether a matter in issue is in the “national interest” is largely a political one: Plaintiff S156/2013, 46 [40]. In the context of s 501BA(2) of the Act, that inquiry is evaluative and entrusted to the Executive: ENT19 v Minister for Home Affairs (2023) 278 CLR 75, 108 – 109 [93]; Morgan [27]: with the consequence being that the expectations of the Australian Community are well within the recognised range of matters which fall comfortably in that concept: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 [39]; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, 353 [89]; see, eg, XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 [55].

58    In relation to the protection of the Australian Community, being another axiomatic inclusion in the plethora of “national interest” matters, it is now well accepted that it is not necessary for the Assistant Minister to perceive any specific or immediate threat: see, eg, Burgess v Assistant Minister for Home Affairs (2019) 271 FCR 181, 208 [116], 209 [118]. To this extent, the claim that the Assistant Minister did not consider the absence of any immediate threat is irrelevant.

Conclusion

59    Even on a reasonably impressionistic view, Mr Kopa’s proposed grounds of review are without merit. Whilst he feels aggrieved by the 2024 Decision, no hint of a jurisdictional error has been shown in it. In those circumstances, it cannot be said that it “is necessary in the interests of the administration of justice” to grant the EoT Application: see s 477A(2) of the Act, Tu’uta Katoa 591 – 592 [18]; cf Elsharkawi v Minister For Immigration & Multicultural Affairs [2025] FCA 293. There is no reason why Mr Kopa should not pay the respondent’s costs of the application.

Associate:    

Dated:    23 May 2025