FEDERAL COURT OF AUSTRALIA

XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision made on 8 June 2024 by the respondent under s 501BA of the Migration Act 1958 (Cth) purporting to set aside the decision of the Administrative Appeals Tribunal dated 13 April 2021 and cancel the visa that had been granted to the applicant.

2.    The respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

1    The applicant seeks judicial review of a decision made personally by the then Minister for Immigration, Citizenship and Multicultural Affairs under s 501BA of the Migration Act 1958 (Cth), setting aside a decision made by the Administrative Appeals Tribunal under s 501CA and cancelling a protection visa held by the applicant.

2    The Minister decided to exercise the power in s 501BA almost three years and two months after the Tribunal’s decision to revoke the cancellation of the applicant’s visa. In such circumstances, the applicant contends that the power conferred by s 501BA is subject to an implied limitation that it must be exercised within a reasonable time after the original decision was made by the Tribunal, and is not available to be exercised beyond that time. The applicant contends that, on the particular facts of the present case, the Minister’s decision was not made within a reasonable time after the Tribunal’s decision, and is therefore beyond power and invalid. The applicant also alleges that the Minister erred by misunderstanding the nature of the power conferred by s 501BA, and that there was a breach of natural justice by reason of apprehended bias.

3    For the reasons set out below, I consider that s 501BA is subject to an implied temporal limitation requiring that it be exercised within a reasonable time after the original decision of the delegate or the Tribunal to which the power is directed. Accordingly, if the Minister is to exercise the power to set aside the original decision and cancel the visa, the Minister must do so within a reasonable time. Otherwise, the connection with the original decision as the object of the power will be lost, and it can no longer be said that the Minister is addressing or responding to the state of affairs produced by or resulting from the original decision.

4    What is a reasonable period within which the power under s 501BA must be exercised will depend on the facts and circumstances of the particular case. However, I am comfortably satisfied that the Minister’s decision in the present case was not made until well after a reasonable time had elapsed. Accordingly, the purported exercise of power by the Minister was beyond the limits of the authority or jurisdiction conferred by s 501BA and is invalid.

5    It follows that the Minister’s decision is affected by jurisdictional error and must be quashed.

6    Otherwise, I consider that the Minister correctly understood that his decision involved both setting aside the Tribunal’s decision and cancelling the applicant’s visa, and I do not consider that a fair-minded lay observer might reasonably apprehend that the Minister might have made a decision other than on the merits by reason of the possession of irrelevant and prejudicial material about pending criminal charges against the applicant.

FACTUAL BACKGROUND

7    The applicant was born in Somalia in the late 1960s. In around 1993, the applicant fled to Lebanon, where he lived for approximately ten years before his arrival in Australia on 9 January 2004 as the holder of a Class XB Subclass 200 Refugee visa.

8    Between 2008 and 2017, the applicant was convicted on multiple separate occasions of offences including wilful and obscene exposure in public and being drunk in a public place. He was also convicted of several offences of unlawful assault, including against police officers and emergency workers.

9    On 22 June 2017, the applicant pleaded guilty and was convicted of a range of offences for which he received a total effective sentence of one year and five months imprisonment, with a non-parole period of nine months. The most serious of these offences involved the applicant having masturbated in front of a 29-year old woman and, on another occasion, a 13-year old girl while on public transport. In respect of the latter offence of indecent act in the presence of a child under the age of 16, the applicant was sentenced to nine months’ imprisonment, and was placed on the sex offenders register for 15 years. The applicant was also convicted of unlawful assaults on police and emergency workers, including kicking a police officer in the face while being placed in a police van and fracturing the officer’s cheekbone, for which he received a sentence of six months’ imprisonment.

10    On 15 December 2017, the applicant’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act, which relevantly provides for the mandatory cancellation of a person’s visa if the Minister is satisfied that the person does not pass the character test because of his or her serious criminal record, having been sentenced to a term of imprisonment of 12 months or more or because he or she has been convicted of one or more sexually based offences involving a child, and where the person is serving a sentence of imprisonment on a full-time basis in a custodial institution.

11    On 15 January 2019, a delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the applicant’s visa. The delegate’s decision was affirmed by the Tribunal on 9 April 2019. However, on 19 December 2019, this Court made orders quashing the Tribunal’s decision and requiring the Tribunal to redetermine the application for review according to law: XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134; 168 ALD 267.

The Tribunal’s decision

12    On 13 April 2021, a Deputy President of the Tribunal set aside the delegate’s decision and substituted a decision to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act.

13    In summary, the Tribunal was satisfied that there was another reason why the cancellation decision should be revoked. The Tribunal found that the protection of the Australian community and the expectations of the Australian community each weighed moderately in favour of not revoking the cancellation decision. However, this was outweighed by various other considerations that were found to weigh heavily in favour of revocation.

14    The Tribunal found that the applicant’s crimes of a sexual nature and violence against government representatives were to be viewed very seriously, and that the cumulative effect of the applicant’s offending was significant. However, while the Tribunal accepted that the harm to individuals or to the Australian community should the applicant engage in further criminal conduct would be very serious, the Tribunal found that the applicant’s risk of reoffending was low.

15    In making these findings, the Tribunal had regard to a risk assessment and psychiatric report dated 27 May 2020 from a forensic psychiatrist, Dr Nina Zimmerman. In her report, Dr Zimmerman noted that the applicant had an acquired brain injury, a history of alcohol dependence, and post-traumatic stress disorder (PTSD) from his experiences in Somalia and Lebanon. She considered that the applicant did not pose a risk of serious or imminent violence, and that he presented a low risk of future violent offending. Dr Zimmerman was of the opinion that the applicant presented a moderate risk of future sexual offending, which would likely be reduced to low risk with appropriate intervention and risk management strategies. In particular, Dr Zimmerman considered that the applicant was not at risk of sexual offending in the absence of alcohol.

16    The Tribunal was “very impressed generally with the applicant as a witness”, and found that that he had a genuine intention to engage with support services and had shown a genuine insight into his offending and how he could take steps to avoid offending in the future, including by abstaining from alcohol. The Tribunal found that it was likely that the necessary supports would be provided to, and accepted by, the applicant “and that consequently the likelihood of reoffending is low”.

17    The Tribunal nevertheless found that, “[d]espite the low risk of re-offending, there remains some risk, such that the protection of the Australian community is a factor that weighs moderately in favour of not revoking the cancellation decision”.

18    In relation to the expectations of the Australian community, the Tribunal noted that the applicant had lived much of his adult life in Australia, during which his specific needs arising from his acquired brain injury and PTSD were not provided during his periods of homelessness. The Tribunal considered that the applicant was willing to engage with support services and that, in those circumstances, the Australian community “would afford a higher level of tolerance with respect to his past criminal behaviour”.

19    The Tribunal had regard to the risks that the applicant may suffer harm if he were removed to Somalia, and the fact that his removal to Somalia would be in breach of international non-refoulement obligations. These considerations were regarded by the Tribunal as weighing heavily in favour of revocation of the cancellation decision. The Tribunal also found that the extent of the impediments that the applicant may face if removed to Somalia were extreme, and that this was a factor that weighed strongly in favour of revoking the cancellation decision.

20    While the Tribunal found that the strength, nature and duration of the applicant’s ties to Australia weighed in favour of revocation, it gave that consideration limited weight, given that the applicant had formed very few ties with people in Australia and had not made positive contributions to the Australian community.

21    The Tribunal took into account the consequences of a decision not to revoke the cancellation decision, including his possible removal from Australia and prolonged or indefinite detention.

22    The Tribunal summarised its conclusions as follows:

I have reached the conclusion that the other considerations of risk of harm, non-refoulement obligations and extent of impediments outweigh the primary considerations of the protection and expectations of the Australian community. Less weight can be given to the protection and expectations of the Australian community because of my finding that there is a low risk of reoffending. That finding is supported by the very strong evidence that the applicant is sufficiently rehabilitated and has the necessary supports in place so as to reduce the likelihood of further reoffending. The applicant committed his offending as a homeless person with mental health issues and alcohol addiction. His circumstances have now changed such that he has abstained from alcohol for four years, received treatment for his mental health issues and has received support from community leaders, providers of social services and medical providers. The overwhelming evidence indicates that these supports will continue to be provided and that the applicant will engage with them.

The low risk of reoffending in terms of protection and expectations of the Australian community must be weighed against the catastrophic consequences to the applicant if he is returned to Somalia. As I have previously stated, he would be like a lamb to the slaughter in Somalia. The country information with respect to Somalia is not in dispute nor is there a dispute that the applicant is owed non-refoulement obligations. These are factors that weigh heavily in favour of revoking the cancellation decision.

The applicant has lived in Australia for nearly two decades and has received very little support. I consider that with the support that is now available it is likely that he will not reoffend such that the risk to the Australian community of allowing him to remain in Australia is low.

Events after the Tribunal’s decision

23    As discussed below, the Tribunal’s decision was notified to the Department of Home Affairs shortly after it was given. The evidence in relation to the handling and consideration of the applicant’s case within the Department is addressed below in considering Ground 2 of the further amended originating application.

24    On 7 June 2023, the applicant was convicted of offences of “Direct sexual activity person (2 charges)” and “Sexual exposure in public place”, together with offences involving breaches of bail conditions and reporting obligations. The applicant received an aggregate sentence of 359 days’ imprisonment for these offences.

25    On 29 January 2024, the Department notified the applicant that the Minister would personally give consideration to whether to set aside the Tribunal’s decision and cancelling his visa under s 501BA(2) of the Migration Act (the Notice). Among other things, the applicant was invited to comment on information indicating that he may not pass the character test, and to provide reasons why his visa should not be cancelled even if he did not pass the character test. The Notice attached a number of documents, including a National Criminal History Check dated 9 November 2023 and a copy of a Ministerial direction under s 499 of the Migration Act dated 23 January 2023 and entitled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99).

26    Notwithstanding the invitation to comment, the Notice stated that the Minister had “no statutory obligation to give you the chance to present your views or objections before deciding to set aside the original decision of the [Tribunal] and cancel your visa”, but that “the Minister is not prohibited from affording you such an opportunity should they so choose”. Nevertheless, the Notice also positively stated that the Minister would consider any reasons provided by the applicant why his visa should not be cancelled, along with “all relevant information”, before deciding whether or not to set aside the original decision and cancel his visa under s 501BA(2). The applicant was requested to provide a response within 28 days after he was taken to have received the notice, or otherwise to request an extension of time to respond before that time.

27    These potential tensions inherent in the Notice were crystallised when the Minister subsequently made a decision on 8 June 2024 to consider exercising the power under s 501BA to set aside the Tribunal’s decision and cancel the applicant’s visa “without natural justice”, that is, “without offering [the applicant] an opportunity to provide information or comments”. While some correspondence had been exchanged between the applicant’s legal representatives and the Department in February 2024, including a request for an extension of time to respond to the Notice, it does not appear that any submissions were ultimately provided on behalf of the applicant regarding the proposed exercise of power under s 501BA.

28    In response to the request for an extension of time to provide reasons why the applicant’s visa should not be cancelled, a Departmental officer sent an email to the applicant’s representatives on 26 February 2024 in which it was relevantly stated:

[The applicant’s] visa status will be subject to Ministerial consideration, and we cannot authorise an extension at this time, but timing may be partly dependant on whether a full trial proceeds this week in the County Court in relation to pending matters.

While the normal Notice of Intention to consider setting aside the original decision of the AAT continues to apply, the Department will take into consideration any further information submitted before the decision is made.

29    The applicant’s representatives responded by email on the same day, stating:

Given the period of time of almost three years since the decision of the Administrative Appeals Tribunal General Division which the Minister is considering setting aside under s 501BA(2) of the Migration Act 1958 (‘the Act’), that [the applicant] has not recorded further convictions under s 501(6)(a) of the Act since that decision, and that the pending matters referred to in your email are yet to be judicially determined, we submit that to accord procedural fairness to [the applicant], the Minister should refrain from any exercise of power until such time as the pending matters are finalised.

30    On 2 July 2024, the applicant’s representatives wrote to the National Character Consideration Centre (NCCC), asking “as a matter of urgency” whether a decision had been made in the applicant’s matter. On the following day, the applicant’s representatives sent a further email noting that they had not received any documents notifying the applicant of a decision “despite having been the authorised recipient since 23 February 2024”.

31    On 16 July 2024, the Department notified the applicant’s representatives that the Minister had made a decision on 8 June 2024 to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA of the Migration Act. The letter acknowledged that a previous attempt to notify the applicant of this decision had been “incorrect” or “defective”, and attached a record of the Minister’s decision together with a written statement of reasons.

The Minister’s decision under s 501BA

32    The Minister decided that he was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(e) of the Migration Act, and that it was in the national interest to cancel the applicant’s visa. The Minister decided to exercise his discretion under s 501BA to set aside the Tribunal’s decision and cancel the applicant’s visa.

33    The Minister’s reasons had regard to the sexual offences of which the applicant had been convicted in June 2023 (see paragraph 24 above), which had occurred after the date of the Tribunal’s decision. In that regard, the Minister relied on the National Criminal History Check dated 9 November 2023. The Minister referred to the recent convictions at several points in his statement of reasons, and placed some weight on the fact that the applicant had “continued offending after the AAT Decision”, particularly in addressing the risk to the Australian community.

34    After noting that the rules of natural justice do not apply to a decision under s 501BA(2), the Minister stated that he had chosen to proceed without giving the applicant an opportunity to be heard, “cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not now be made”. Nevertheless, the Minister stated that he had considered the evidence and submissions that were before the Tribunal when it made its decision, together with the subsequent National Criminal History Check.

35    The Minister was satisfied that the applicant did not pass the character test because of s 501(6)(e), based on his previous convictions in 2015 and 2017 for an indecent act in the presence of a child under 16.

36    The Minister noted that he was required to make an evaluative judgment having regard to a range of matters that may inform the national interest, the content of which was “in large part a political question”. In particular, the Minister had regard to the protection of the Australian community and the expectations of the Australian community.

37    In addressing the seriousness of the applicant’s criminal conduct, the Minister stated that “[t]he Australian government considers that all offending involving violence or sexual assault, particularly against women or children, is viewed very seriously by the Australian community”. After quoting from the prosecutor’s summary and the Magistrate’s sentencing remarks in relation to the 2017 convictions, the Minister continued:

27. I regard [the applicant’s] sexual and violent offending very seriously, and am particularly concerned that he has continued to offend, having been convicted of further sexual offending in 2023, after the AAT Decision which effectively reinstated his visa.

28. I am extremely concerned that [the applicant’s] sexual offending has involved minor children on two separate occasions (he has been convicted of indecent act in presence child under 16 in 2015 and 2017) including, as noted above, a 13 year old girl.

…

30. I am also very concerned that [the applicant] has been convicted on a number of occasions for assaulting police officers, as well as an emergency worker on duty. In addition to these being violent offences, I consider the nature of these assaults to be serious in circumstances where they were committed against public officials in the execution of their duties.

(Emphasis in original).

38    The Minister referred to the applicant’s “history of very frequent offending”, including in breach of community-based orders and bail conditions, and noted that “offences committed in breach of court orders should be viewed particularly seriously, as they reveal a tendency to take advantage of the trust and leniency of Australian authorities”. The Minister considered that the applicant’s offending “may be viewed as especially serious when viewed cumulatively”. Accordingly, the Minister found that “given his violent and sexual offending, and in particular his sexual offending involving a child, and given the frequency of his criminal conduct, [the applicant’s] offending is very serious”.

39    In addressing the risk to the Australian community, the Minister considered that “any future offending of a similar nature or seriousness would have the potential to cause very serious physical and psychological injury to members of the Australian community, including to children, who may be victims of a violent or sexual assault”. The Minister proceeded to assess the likelihood of the applicant reoffending in the future based on “available information as to matters that may have contributed to [the applicant’s] past conduct, as well as indications of remorse and the extent of [the applicant’s] rehabilitation, where relevant information is available”.

40    Having had regard to Dr Zimmerman’s report, the Minister found that the applicant’s “history of childhood and adult trauma, together with his Acquired Brain Injury and use of alcohol, are likely driving factors in his offending”. Critically, however, the Minister did not accept the Tribunal’s assessment in relation to the applicant’s remorse and rehabilitation. Rather, the Minister found that there was a high risk of the applicant engaging in further criminal conduct, and that “on balance there remains a high likelihood that [the applicant] will reoffend”. These findings were based on the applicant’s history of reoffending, including after the Tribunal’s decision. The Minister noted that the applicant had continued offending despite having presented evidence to the Tribunal that he would access available support services. The Minister also noted that, having been assessed by Dr Zimmerman in 2020 as being a “moderate risk of future sexual offending”, the applicant had in fact been convicted of sexual offences in 2023. The Minister did not refer to the qualifications on Dr Zimmerman’s assessment of the applicant’s risk of sexual offending, which she had considered was likely to be “reduced to low risk with appropriate intervention and risk management strategies”, and would not arise in the absence of alcohol. However, it is conceivable that the Minister did not consider those qualifications to be relevant in the light of the applicant’s subsequent convictions in 2023.

41    The Minister therefore found:

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

42    The Minister also attributed significant weight to the expectations of the Australian community towards a finding that it was in the national interest to cancel the applicant’s visa. The Minister considered that “the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct”, such as “violent and sexual conduct, including sexual offending involving a child, and offending against government representatives in the course of their duties”.

43    In deciding to exercise his discretion under s 501BA of the Migration Act to set aside the Tribunal’s decision and to cancel the applicant’s visa, the Minister gave weight to the matters considered in finding that the cancellation of the applicant’s visa was in the national interest, together with the following other considerations.

(a)    The strength, nature and duration of the applicant’s ties to Australia, including the length of time that he had been ordinarily resident in Australia, weighed “to a limited degree” against cancellation of his visa.

(b)    While the applicant’s protection claims and the likelihood that he is owed non-refoulement obligations weighed against cancellation, it was appropriate for those claims to be assessed in the context of an application for a protection visa, should the applicant choose to make such an application.

(c)    The extent of the impediments that the applicant would face if removed to Somalia was given significant weight against cancellation of his visa.

44    However, the Minister concluded that “the considerations against cancellation are clearly outweighed by the national interest considerations in this case”. The Minister reiterated that he “could not rule out the possibility of further criminal conduct” and that he did not consider it to be in the national interest for the Australian community to be expected to tolerate any risk of further harm.

45    Finally, following the Minister’s decision to cancel the applicant’s protection visa under s 501BA, the applicant was granted a bridging visa (Class R subclass 070) on 28 June 2024.

GROUNDS OF REVIEW

46    The further amended originating application dated 17 February 2025 contains four grounds of review, only three of which are now pressed.

47    By Ground 1, the applicant alleges that “[t]he Minister erred jurisdictionally by reasoning as if the power in s 501BA(2) was, and was only, a power to cancel a visa”, as opposed to a power to do two things, namely, to set aside the original decision to revoke the cancellation of a person’s visa and to cancel that visa. In the particulars to this ground, the applicant points to references in the Minister’s reasons to the “power to cancel” or to the “cancellation” of the applicant’s visa, without express acknowledgement or consideration of the setting aside of the Tribunal’s decision. The particulars elaborate on this ground by stating that “[e]xpressed differently, but to the same effect, the Minister failed to consider that one consequence of setting aside the Tribunal’s decision and cancelling the Applicant’s visa was to deprive the Applicant of the fruits of his three and a half years of litigating judicial and merits review proceedings”.

48    By Ground 2, the applicant alleges that “[t]he Minister erred jurisdictionally by failing to exercise his power within a reasonable time”. The applicant contends that the power conferred by s 501BA(2) is “subject to an implied limit that it be exercised within a reasonable time of the original decision which engages the power by virtue of sub-s (1)”. The applicant alleges that the period of 38 months after the Tribunal’s decision was not a reasonable time in the circumstances of the present case.

49    By Ground 3, the applicant alleges that the Minister’s decision was affected by an apprehension of bias. The particulars of this ground allege that the Minister had before him extraneous and prejudicial information that the applicant had been charged with, but not convicted of, a number of offences including two charges of rape. In circumstances where the Minister was particularly concerned about the applicant’s commission of sexual offences, and where the Minister’s reasons did not disavow any reliance on the extraneous information about the rape charges, the applicant alleges that “a fair-minded lay observer might [apprehend] that the Minister might not have brought an impartial mind to the resolution of the question he was required to decide by reason of consideration of the extraneous information”.

50    Ground 4 of the further amended originating application, by which the applicant alleged that the Minister erred by failing to consider all the legal consequences of the decision, was not ultimately pressed by the applicant.

LEGISLATIVE PROVISIONS

51    Section 501BA of the Migration Act is one of a number of interconnected provisions contained in Division 2 (Other) of Part 9 (Miscellaneous) which deal with the refusal or cancellation of visas on character grounds. Some of the relevant powers conferred by these provisions can be exercised by delegates, others are required to be exercised by the Minister personally. Some of the powers are subject to the rules of natural justice, some are not. In cases where natural justice is excluded, there is sometimes a power to revoke the original decision. Some of the powers that are conferred on the Minister personally can only be exercised if the refusal or cancellation is in the national interest. In some cases, a notice in relation to the exercise or the consideration of the power must be tabled in the Parliament.

52    In Minister for Home Affairs v Brown (2020) 275 FCR 188 at [28], Allsop CJ, Kenny, and Banks-Smith JJ noted the “wide variety of circumstances” to which the “interlocking provisions” of ss 501, 501A, 501B, 501BA, 501C and 501CA may apply. Their Honours stated that the provisions confer “important powers that touch upon the protection of the Australian community, but that also affect the lives of ordinary people living in, or as part of, the Australian community who do not have the status of citizenship”. Referring to Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, their Honours observed that the exercise of these powers can involve “potentially devastating consequences” for a person or persons.

53    An understanding of the architecture of the statutory scheme is necessary in order to place the power conferred by s 501BA in its proper context.

54    In broad terms, there are three categories of character refusal or cancellation decisions under s 501 of the Migration Act, each of which leads down a different “pathway” of subsequent decision-making powers with differing features.

(a)    First, a decision to refuse to grant a visa under s 501(1) or to cancel a visa s 501(2) may be made either by the Minister or a delegate. The rules of natural justice apply in respect of such decisions. Where the decision is made by a delegate, it is subject to review by the Tribunal: s 500(1)(b).

(i)    If a delegate or the Tribunal makes a decision not to refuse to grant a visa or a decision not to cancel a visa, s 501A confers power on the Minister personally (s 501A(5)) to set aside the original “non-adverse” decision and either refuse to grant a visa to the person or cancel a visa that has been granted to the person.

(A)    The Minister must be satisfied that the refusal or cancellation is in the national interest: s 501A(2)(e), (3)(d).

(B)    The Minister can make a decision either under s 501A(2) with natural justice, or under s 501A(3) without natural justice (s 501A(4)).

(C)    The Minister’s powers under s 501A are non-compellable (s 501A(6)), and a decision under s 501A is not subject to review by the Tribunal (ss 500(1), 501A(7)).

(D)    If the Minister makes a decision without natural justice under s 501A(3), that decision may subsequently be revoked by the Minister under s 501C after inviting the person to make representations, but only if the person satisfies the Minister that he or she passes the character test.

(ii)    If a delegate makes a decision to refuse to grant or to cancel a visa, s 501B(2) confers power on the Minister personally to set aside the original “adverse” decision of the delegate, and himself or herself refuse to grant a visa to the person or cancel a visa that has been granted to the person. In other words, the original adverse decision by the delegate is replaced by an adverse decision made by the Minister personally, so as to prevent or intercept any application to the Tribunal for merits review of the original decision.

(A)    There is no exclusion of the rules of natural justice in s 501B.

(B)    The Minister must be satisfied that the refusal or cancellation is in the national interest: s 501B(2)(e).

(C)    Unlike the delegate’s original decision, the Minister’s decision is not reviewable by the Tribunal: ss 500(1), 501B(4).

(D)    The Minister may exercise the power even if there is an application for review of the delegate’s decision is pending before the Tribunal: s 501B(5).

(b)    Secondly, a decision to refuse or cancel a visa under s 501(3) may be made by the Minister personally (s 501(4)) and without natural justice (s 501(5)), provided that the Minister is satisfied that the refusal or cancellation is in the national interest (s 501(3)(d)). Subject to specified exceptions, the Minister must cause notice of any decision made under s 501(3) to be laid before each House of the Parliament within 15 sitting days after the day the decision was made: s 501(4A). The exceptions to the tabling requirements cover decisions made in relation to persons who are reasonably suspected of having a substantial criminal record, of having been convicted or found guilty of sexually based offences involving a child, or of having been assessed by the Australian Security Intelligence Organisation to be a risk to security, along with persons who have been the subject of an adverse security assessment or a qualified security assessment under the Australian Security Intelligence Organisation Act 1979 (Cth): see s 501(4B), (6)(a), (e) and (g).

(i)    If the Minister personally decides to refuse or cancel a visa under s 501(3), the Minister must (with some possible exceptions (s 501C(10)) invite the person to make representations about revocation of that decision under s 501C. Section 501C confers power on the Minister personally (s 501C(5)) to revoke an original decision made under s 501(3) if the person makes representations in accordance with the invitation, and satisfies the Minister that he or she passes the character test: s 501C(4). However, the power to revoke the original decision under s 501C(4) does not extend to a reconsideration of whether or not the refusal or cancellation of the visa is in the national interest, nor to the exercise of discretion whether or not to refuse or cancel the visa: see e.g. Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [52], [84], [87]–[88], [94], [102] (Kenny, Flick and Griffiths JJ).

(A)    There is no exclusion of the rules of natural justice in s 501C.

(B)    Notice of decisions made by the Minister to revoke or not to revoke an original decision under s 501C(4) must be laid before each House of the Parliament within 15 sitting days after the date on which the subsequent decision was made: s 501C(8).

(C)    Further, if a person does not make representations in response to an invitation under s 501C, notice of that fact must also be tabled in the Parliament within 15 sitting days: s 501C(9).

(D)    A decision not to exercise the power to revoke the original decision under s 501C(4) is not reviewable by the Tribunal: ss 500(1), 501C(11).

(c)    Thirdly, s 501(3A) deals with the mandatory cancellation of a visa in certain circumstances. If a person is currently serving a sentence of imprisonment on a full-time basis in a custodial institution, the Minister (or a delegate) must cancel a visa that has been granted to that person if he or she is satisfied that the person does not pass the character test because he or she has substantial criminal record under s 501(6)(a) and (7)(a), (b) or (c), or because he or she has been convicted or found guilty of one or more sexually based offences involving a child. The rules of natural justice do not apply to a mandatory cancellation decision: s 501(5). A decision made by a delegate under s 501(3A) is not reviewable by the Tribunal: s 500(1)(b), (4A)(c).

(i)    If the Minister (or a delegate) makes a mandatory cancellation decision under s 501(3A), the person must be invited to make representations about revocation of that decision under s 501CA. Section 501CA confers power on the Minister (or a delegate) to revoke the original decision made under s 501(3A) if the person makes representations in accordance with the invitation, and satisfies the Minister either that he or she passes the character test or that there is another reason why the original decision should be revoked: s 501CA(4). Where the decision under s 501CA(4) is made by a delegate, it is subject to review by the Tribunal: s 500(1)(ba).

(ii)    This leads in turn to s 501BA, which is the power that is in issue in the present case. If a decision is made by a delegate or by the Tribunal to revoke a mandatory cancellation decision under s 501CA(4), s 501BA confers power on the Minister personally (s 501BA(4)) and without natural justice (s 501BA(3)) to set aside the original “non-adverse” decision and cancel the visa that has been granted to the person. The Minister must be satisfied that person does not pass the character test on the same grounds that are set out in s 501(3A), and that the cancellation is in the national interest: s 501BA(2).

55    As can be seen from this summary, the power conferred by s 501BA arises as the culmination of a cancellation pathway that begins with a mandatory cancellation decision under s 501(3A), proceeds through a revocation decision made by either a delegate or the Tribunal under s 501CA, and concludes with a possible decision by the Minister personally to set aside the revocation decision and cancel the visa.

56    It is convenient to set out the full terms of s 501BA:

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.

57    The power conferred by s 501BA shares some features with the other powers discussed above, but is distinct in several respects.

(a)    It is a power that must be exercised by the Minister personally, like the powers conferred by ss 501(3), 501A, 501B and 501C. As is the case with each of those powers, the personal decision of the Minister under s 501BA is not subject to review by the Tribunal.

(b)    The rules of natural justice are excluded, like the powers under s 501(3) and (3A), and s 501A(3). However, unlike those other powers, no opportunity is provided for the person to make representations seeking revocation of the decision.

(c)    The power must be exercised “in the national interest”, like the powers under ss 501(3), 501A and 501B. However, there is no requirement for any notice of a decision under s 501BA to be tabled in the Parliament, in contrast to ss 501(3) and 501C.

58    The Migration Act clearly contemplates that the Minister should have broad powers to intervene in circumstances where it is considered that the refusal or cancellation of a visa is in the national interest. The exercise of such powers can either override, or take the matter out of the hands of, a delegate or the Tribunal. Nevertheless, the person affected is usually afforded either an opportunity to be heard before the making of the decision, or a subsequent opportunity to seek revocation of the decision. Admittedly, this opportunity is attenuated in some circumstances, such as where a refusal or cancellation decision is made without natural justice under s 501(3), and revocation of that decision may only be sought on the ground that the person passes the character test. In addition, notice of refusal or cancellation decisions made in the national interest under s 501(3) must generally be tabled in the Parliament under s 501(4A), while s 501C(8) and (9) respectively ensure that notice is tabled in the Parliament if the Minister makes a decision under s 501C(4) to revoke or not to revoke a decision under ss 501(3) or 501A(3), or if a person does not make any representations regarding revocation in response to an invitation. There is no equivalent tabling requirement in relation to decisions made in the national interest under s 501BA.

59    Accordingly, it is the combination of the features identified above — the exclusion of natural justice, the denial of an opportunity to seek revocation of the cancellation decision, and the absence of any requirement for tabling in the Parliament — that renders unique the power conferred by s 501BA in the statutory scheme. It may be noted that, where a decision is made by the Minister under s 501BA to set aside a revocation decision under s 501CA(4) and cancel a visa that has been granted to a person, that person will have been given an opportunity to be heard in relation to the making of the revocation decision by the delegate or the Tribunal. In my view, this sheds some light as to the basis on which the Parliament has excluded natural justice before a decision is made under s 501BA and denied any opportunity to seek revocation after such a decision has been made, and reinforces the connection between an exercise of power under s 501BA and the original decision to which that exercise of power is directed.

60    The context of s 501BA was helpfully summarised by Colvin J in Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 at [9]–[22]. Referring to ss 501A, 501B and 501BA, Colvin J observed (at [20]–[22]):

All these provisions operate to confer a form of national interest call-in power upon the Minister whereby the Minister can intervene personally to alter the course of the legislative scheme for the consideration of a valid application for a visa (as principally expressed in s 65).

As has been noted, the Minister also has the personal power to make a decision of that kind in the national interest as the initial decision, before any other decision on the merits by a delegate of the Minister or the independent tribunal: s 501(3) and (4).

Taken together, the various provisions conferring the personal “national interest” powers upon the Minister operate as a form of qualification to the scheme for dealing with valid visa applications on the merits. That scheme includes the conferral of special powers which allow for the refusal of the application or the subsequent cancellation of a visa on character grounds.

61    Finally, as a contextual matter, it should be noted that there are time limits on various stages of the decision-making processes set out above. An application to the Tribunal by a person in the migration zone for a review of a refusal or cancellation decision made by a delegate under s 501, or a decision not to revoke a cancellation decision made by a delegate under s 501CA(4), must be lodged within nine days after the day on which the person was notified of the decision: see s 500(6B). Further time limits apply to the conduct and determination of the review proceedings by the Tribunal: s 500(6F), (6L). For example, if the Tribunal has not made a decision in relation to the review within the period of 84 days after the day on which the person was notified of the decision under review, the Tribunal is taken to have made a decision to affirm the cancellation decision: s 500(6L).

CONSIDERATION

Ground 1: Did the Minister err by treating the power in s 501BA(2) as only a power to cancel a visa?

62    The applicant alleges that the Minister erred by treating the power under s 501BA(2) as if it were only a power to cancel a visa that has been granted to a person, as opposed to a power to set aside the original decision and cancel the visa. In other words, the applicant contends that the Minister failed to understand that he was setting aside a decision of the Tribunal to revoke the cancellation of the applicant’s visa, and did not take into account that the consequence or effect of doing so was to deprive the applicant of the “fruits” of his successful merits review proceedings (if not also the previous judicial review proceedings challenging the first decision made by the Tribunal).

63    As discussed further below, s 501BA(2) confers a single power of a composite nature, by which the Minister may both set aside a decision to revoke the mandatory cancellation of a person’s visa, and cancel that visa: see CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [33] (Owens J). I accept that this cannot be treated as simply a power to cancel the visa of a person in circumstances where there happens to have been a previous decision made by a delegate or the Tribunal under s 501CA to revoke a cancellation decision under s 501(3A). The cancellation of a person’s visa under s 501BA(2) is consequent upon and connected with setting aside the original decision that was made under s 501CA(4).

64    However, I do not accept that the Minister was acting under any misapprehension that the power he was exercising did not involve setting aside the original decision of the Tribunal to revoke the cancellation of the applicant’s visa. The Minister’s statement of reasons is replete with references to the Tribunal’s decision. First, the decision itself is expressed in terms that refer to the exercise of discretion to set aside the Tribunal’s decision and cancel the applicant’s visa: at [1], [94]. Second, the fact of the Tribunal’s decision is expressly recorded in the Minister’s reasons: at [7]. Third, the Minister’s reasons directly engage with the findings made by the Tribunal, as well as the evidence that was before the Tribunal: at [11], [36], [37], [40]–[43], [59], [62], [70]–[72], [82].

65    The applicant pointed to various paragraphs in the Minister’s statement of reasons which refer to the discretion whether or not to cancel the applicant’s visa, and the consequences of the cancellation of the applicant’s visa, without directly referring to setting aside the Tribunal’s decision: see at [57], [65], [74]–[76], [79], [84]–[85], [87], [91] and [93]. However, on a fair reading of the Minister’s reasons as a whole, there is nothing in those paragraphs to suggest that the Minister was treating the power as involving cancellation divorced from setting aside the Tribunal’s decision. It was both permissible and appropriate for the Minister to address whether the discretion under s 501BA(2) should be exercised by reference to the consequences of cancelling the visa that had been granted to the applicant. The Minister was clearly cognisant of the fact that the discretion arose in the context of the original decision by the Tribunal to revoke the cancellation of the applicant’s visa, and that he was deciding whether to set aside that decision and cancel that visa.

66    Accordingly, on the facts of the present case, Ground 1 is not established.

Ground 2: Was the Minister required to exercise the power under s 501BA within a reasonable time and, if so, did the Minister fail to do so?

Construction of s 501BA

Text, context and purpose

67    The construction of s 501BA must begin with the statutory text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]–[39] (Gageler J); DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 at [23] (Gageler CJ, Gordon, Edelman and Gleeson JJ). Context should be regarded “in the first instance” or “at the first stage”, in that the language of the relevant statute must be viewed as a whole, taking into account matters such as the existing state of the law and the mischief that the provision was intended to remedy: DZY at [23], referring to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). The statutory purpose must be ascertained from the statute, whether by express statement or inferred from its text and structure, and not by making any “a priori assumption” about the desired reach or operation of the provisions: DZY at [23]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at [25]–[26] (French CJ and Hayne J). An interpretation that would best achieve the legislative purpose or object (whether or not that purpose or object is expressly stated) is to be preferred: Acts Interpretation Act 1901 (Cth), s 15AA. Where appropriate, the context or purpose of statutory provisions may be informed by legitimate recourse to extrinsic material, although such material cannot supplant or displace the plain meaning of the statute: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); see Acts Interpretation Act, s 15AB.

68    The question raised by the present case is not concerned directly with the meaning to be given to words used in s 501BA, in the sense of the resolution of linguistic uncertainty by making constructional choices about the interpretation of particular language used in the statutory provision. Rather, the question is whether the power conferred by s 501BA is subject to an implied limitation requiring it to be exercised, if at all, within a reasonable time after the original decision was made under s 501CA.

69    Starting with the text of s 501BA, the circumstances in which the section applies are delimited by s 501BA(1). The power conferred by s 501BA(2) arises only if and when there has been an “original decision” made by a delegate or the Tribunal under s 501CA to revoke a mandatory cancellation decision. In those circumstances, s 501BA(2) confers on the Minister power to “set aside the original decision and cancel a visa that has been granted to the person”. The power conferred by s 501BA(2) is directed to the original decision, and the cancellation of the person’s visa is necessarily linked to and consequent on the setting aside of the original decision. In so far as s 501BA(2)(b) requires the Minister to be satisfied that “the cancellation” is in the national interest, this should be understood as referring to the cancellation that follows from setting aside the original decision as referred to in the chapeau to the subsection.

70    In other words, the text and structure of s 501BA(2) establish a link or connection between the original decision to revoke the cancellation of a person’s visa, and the Minister’s decision to set aside that original decision and cancel a visa that has been granted to the person. It is arguable that the visa that is the subject of a decision under s 501BA(2) must be the same visa that was the subject of the original decision, but it is unnecessary to resolve that question for present purposes. The important point is that s 501BA(2) cannot be regarded as a freestanding power to cancel a person’s visa independently of the original decision made under s 501CA. The original decision to revoke the mandatory cancellation of a visa granted to a person is more than a mere gateway to the conferral on the Minister of a power that exists at large to cancel that visa, let alone any other visa that may be granted to that person. To conclude otherwise would give no operation or effect to the words “may set aside the original decision and …” in s 501BA(2). Rather, the power conferred by s 501BA(2) is aimed at or directed to an original decision made by the delegate or the Tribunal, and contemplates that it will be exercised in response to such a decision.

71    As discussed below, this does not mean that the Minister’s decision must be based on a review of the findings and reasoning of the delegate or the Tribunal in making the original decision, nor is it necessary for the Minister to disagree with or find error in the original decision: see Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 at [28] (Mortimer J); CRRN at [17], [32]–[34] (Owens J). Among other things, the Minister’s decision is made by reference to whether the cancellation of the person’s visa is “in the national interest”, which presents a different framework to that required to be applied by the delegate or the Tribunal when making the original decision under s 501CA (i.e. whether there is “another reason” why the mandatory cancellation under s 501(3A) should be revoked). But while it may not be mandatory for the Minister to consider the Tribunal’s reasons for decision, s 501BA is nevertheless concerned with the consequences or outcome of that decision, namely the revocation of a mandatory cancellation decision so as to reinstate a visa that has been granted to a person. The power conferred by s 501BA is intended to address the outcome of decisions made under s 501CA that the Minister considers are not in the national interest.

72    As Owens J stated in CRRN at [33]:

The critical question for the Minister’s consideration is singular; namely, whether it is in the national interest that the state of affairs obtaining in consequence of the Tribunal’s decision should be reversed. Because it is no part of the Tribunal’s function to consider the national interest, and because the Minister’s discretion is relevantly enlivened by no consideration other than the national interest, the path by which, and the basis upon which, the Tribunal reached its conclusion are not inevitably relevant to the Minister’s decision. It is the state of affairs produced by the Tribunal’s decision that the Minister is required to consider against the national interest. It follows that when the Minister was considering whether to “set aside” the Tribunal’s decision, it was the result, and not the reasoning, that was in issue.

73    Such a legislative purpose is consistent with the extrinsic material to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (the 2014 Amendment Bill), by which s 501BA was introduced into the Migration Act. In the second reading speech, the Minister referred to the need for the government to have “the ability to act decisively and effectively” to deal with unlawful, fraudulent or criminal behaviour by non-citizens. To that end, the Minister relevantly stated that:

The measures proposed will ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community by delivering consistency in personal ministerial decision-making powers across both the character and general visa cancellation powers.

(Emphasis added.)

Accordingly, in addition to “the introduction of personal ministerial powers to set aside and substitute decisions of delegates and tribunals”, the amendments also introduced new powers into the “general visa cancellation provisions” that were said to be “consistent with those in the character provisions”, including personal powers to set aside decisions of delegates or review tribunals not to exercise the power to cancel a visa under ss 109 or 116: see Subdiv FA of Div 3 of Pt 2 of the Migration Act, particularly ss 133A and 133C. Those amendments were described by the Minister as ensuring “that where a real and immediate risk is posed by a noncitizen, the government can act quickly and decisively to remove that person from the Australian community before that risk can be realised” (emphasis added). There is nothing in the Minister’s second reading speech to suggest that s 501BA was addressing any different mischief — indeed, the Minister emphasised that the intention was to ensure consistency between the character and general visa cancellation powers.

74    The references in the second reading speech to enabling the government to act “decisively” to override decisions of the Tribunal echoed similar sentiments that had been expressed by the Minister on the introduction of the amending legislation in 1998 which inserted the suite of provisions relating to the refusal and cancellation of visas on character grounds, including ss 501, 501A and 501C: see Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 at [33] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ), discussing the extrinsic materials in relation to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (Cth).

75    While the Explanatory Memorandum to the 2014 Amendment Bill does not shed further light on the purpose of s 501BA, the exclusion of the rules of natural justice by s 501BA(3) was justified on the basis that “natural justice will have already been provided to the non-citizen through the revocation process available under s 501CA”: at p 15, para [84]. In relation to the requirement in s 501BA(4) that the power may only be exercised personally, the Explanatory Memorandum stated (at p 15, para [85]):

The intention is that this is a personal power of the Minister to ensure that, despite a decision of a delegate or tribunal to revoke a visa cancellation, the Minister retains the ability in exceptional cases, where it is in the national interest, to remove a person who does not pass the character test from the community.

The exceptional nature of the power was also reflected in the Statement of Compatibility with Human Rights, which referred (at p 2) to the Minister being able to exercise “an extraordinary power to set aside the decision of a review tribunal and substitute his or her own decision to cancel a visa” (emphasis added). The exclusion of merits review was explained in the Explanatory Memorandum (at p 15, para [86]) as being “in recognition of the fact that the government is ultimately responsible for ensuring that decisions reflect community standards and expectations”.

76    These passages in the Explanatory Memorandum support an approach by which an exercise of power under s 501BA is connected to the making of an original decision to revoke the mandatory cancellation of a person’s visa, in circumstances where that person would otherwise be released into or remain in the community as a consequence of the original decision.

Previous authorities on s 501BA

77    In DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [12], Rares J (who was in dissent in the result of the appeal) described the power conferred by s 501BA as exceptional “because the time at which [the Minister] can exercise that power arises only after two previous decision-makers have each exercised separate powers under the Act”, that is, under ss 501(3A) and 501CA(4). Justice Rares identified the original decision under s 501CA as being included in “[t]he subject matter, scope and purpose of s 501BA”, and regarded it as important that s 501BA(2) was a power to “set aside the original decision and cancel a visa that has been granted”: DOB18 at [23]–[24].

78    The principal ground of appeal considered in DOB18 was concerned with whether the Minister had erred by proceeding on the basis that non-refoulement obligations would be considered when the appellant made a subsequent application for a protection visa. However, the appellant also sought leave to rely on a new ground of appeal by which he alleged that the Minister had failed to make a decision within a reasonable time, in circumstances where the decision under s 501BA was made 15 months after the original decision: DOB18 at [109]–[110] (Robertson J). In seeking leave to rely on this new ground, the appellant accepted that there was no express stipulation in s 501BA as to the time within which the Minister’s power was to be exercised, but submitted that it should be implied that the power was to be exercised within a reasonable time of the original decision, relying on Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573–574 (Dixon J), notwithstanding the absence of any duty on the Minister to exercise the power under s 501BA: DOB18 at [152]. The Minister sought to distinguish the decision in Koon Wing Lau on a number of different bases: DOB18 at [160]. Ultimately, the Full Court refused to grant leave to the appellant to rely on the proposed ground, principally because it did not raise a pure question of law and “the Minister reasonably said that he would have wished to adduce evidence before the primary judge if this proposed point had been taken there”: DOB18 at [192] (Robertson J), see also at [90] (Logan J). Justice Robertson noted that “[e]ven the reasonable person posited by the appellant would need to have the full facts before concluding whether or not there was unreasonable delay”: ibid.

79    In Tereva, the Full Court rejected a challenge to a decision by the Minister under s 501BA to set aside an original decision under s 501CA(4) and cancel the appellant’s visa. The grounds of appeal are not directly relevant for the purposes of the present case. Of present relevance in relation to the nature of the power conferred by s 501BA, Mortimer J (as her Honour then was) referred to some “contextual matters”, including the fact that the appellant had “regained his liberty” after the Tribunal’s decision until, without notice to him, the Minister exercised his power under s 501BA: Tereva at [7]–[8], [12]–[13]. On the facts of the particular case, it appears that the Minister had made his decision under s 501BA within a matter of months after the Tribunal’s decision: Tereva at [11]. It was in this context that Mortimer J made the following observations about s 501BA (at [14]–[15]):

The power in s 501BA is draconian. It overrides the executive process of an external and independent merits review, in a Tribunal long regarded as capable in the performance of that function. It overrides an outcome of that merits review process in which all have engaged in good faith, likely at some financial cost, and certainly at some emotional and personal cost. It renders futile the considerable expenditure of public funds and resources in that process.

The added absence of what is generally regarded as a basic presumption, in the exercise of statutory powers set against a background of common law notions of justice and fairness (Kioa v West (1985) 159 CLR 550 at 609, Brennan J), adds to the extremity of the power conferred.

80    These observations were complemented by Bromwich J, who stated that the Parliament, by enacting s 501BA, “has chosen to give the Minister an extreme and largely unaccountable power to override decisions of both delegates and the Tribunal to revoke a visa cancellation on character grounds”: Tereva at [39]. Justice Bromwich continued (at [40]):

It might be thought that the unstated reason for granting such a power was to ensure that real matters of national concern could be addressed urgently and without fetter, and that otherwise the decisions of delegates, and the Tribunal decisions on merits review of delegates’ decisions, would apply without being overridden if otherwise lawful. A reasonable expectation by ordinary decent people would be that such an important overriding power would be used by the Minister with self-imposed restraint, confined to circumstances that really called for it. That is not what has happened in this case.

81    More recently, in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156, the Full Court considered s 501BA(3), which provides that the rules of natural justice do not apply to decisions under s 501BA(2). It had previously been held that, while s 501BA(3) removes any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), it does not prohibit the Miniter from doing so: see Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [26] (White, Perry and Charlesworth JJ); Vargas v Minister for Home Affairs (2021) 286 FCR 387 at [32]–[35] (McKerracher, Markovic and SC Derrington JJ). The appellant in Palmer sought to argue that the Minister, having invited her to provide submissions in respect of a proposed exercise of the power under s 501BA, had then erred by failing to consider all of the material that had been submitted on her behalf. This argument was rejected by the Full Court, which confirmed that natural justice is clearly and unambiguously excluded by s 501BA(3), and that s 501BA(2) cannot become conditioned by a requirement to afford natural justice as a consequence of the Minister’s choice to provide an opportunity to be heard. Justices Derrington and Hespe considered that this conclusion was supported by the context of s 501BA, under which “the possible exercise of s 501BA(2) is only ever reached following the completion of the process in s 501CA” which would usually involve the making of submissions by the visa holder as to the reasons why they should retain their visa and, in some cases, a hearing before the Tribunal: Palmer at [52]–[53]. In this regard, their Honours referred to paragraph [84] of the Explanatory Memorandum, and its premise that natural justice will have already been provided to the non-citizen under s 501CA (see above at paragraph 75).

82    It should be acknowledged that Derrington and Hespe JJ in Palmer also emphasised the contextual consideration that s 501BA is concerned with the national interest, the protection of which is “peculiarly within the province of the Executive”, and regarded this as “an important consideration when the Court is asked to find implicit limitations in powers designed for that purpose”: at [54], [58]–[59]. Nevertheless, while the breadth of the concept of “national interest” is well accepted (see e.g. Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [156]–[157] (Griffiths, White and Bromwich JJ)), it is not unlimited and can be subject to implied conditions such as the requirement of legal reasonableness.

83    In Moli, the applicant challenged a decision made by the Minister under s 501BA on grounds of legal unreasonableness in forming the required state of satisfaction that the cancellation of his visa was in the national interest. Justice Colvin traced the legislative history of the “national interest” powers conferred on the Minister personally to intervene or to set aside character decisions made by the Tribunal: at [23]–[36]. Among other things, the extrinsic materials cited by Colvin J contained frequent reference to the “exceptional” or “emergency” nature of such powers, as well as the political accountability of the Minister for their exercise. While Colvin J noted that the language of the relevant provisions was not expressly qualified in such terms, and ultimately did not accept that s 501BA required there to be something exceptional about what may be regarded by the Minister to be in the national interest (see at [106]), his Honour nevertheless suggested that the powers are directed to circumstances in which it is in the national interest to depart from the general legislative scheme by overriding a decision made by the Tribunal in a particular case. Thus, after considering the legislative history and extrinsic materials, Colvin J said (at [36]):

Possibly, the emphasis upon exceptionality reflects the fact that the various “national interest powers” conferred upon the Minister are to be exercised in the context of the whole of the Migration Act noting that the legislation has as its express object the regulation, in the national interest, of the circumstances in which people who are not citizens can enter, and remain in, Australia. Within that context, a provision that is introduced to confer an additional or special power upon a Minister personally to intervene in the national interest in a way that departs from the consequences that would otherwise flow from those provisions (themselves made in the national interest) may be seen as necessarily contemplating the need for exceptionality of circumstances. Otherwise, such provisions would confer a form of plenary power for the Minister, in the national interest, to take action that was unlimited by the detailed legislative scheme which is Parliament's expression of what is appropriate in that national interest.

(Emphasis in original.)

84    In so far as s 501BA(2)(b) requires the Minister to be satisfied that the cancellation of the person’s visa is in the national interest, Colvin J considered (at [79]) that “in order to justify any purported exercise of the discretionary power, that which is said to be in the national interest must be evident in the sense that it is obvious or made explicit”. Accordingly, Colvin J stated (at [105]) that “the Minister must be able to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why”. While the formation of the required state of satisfaction involves a broad evaluative judgment and is largely a political question, the satisfaction must be formed within the bounds of reasonableness and rationality, and on the basis of a correct understanding of the law: at [96].

85    In this regard, Colvin J stated (at [97]):

[Section] 501BA operates within the legislative scheme as a form of national interest call-in power by which the Minister may set aside a decision that has been made pursuant to that scheme (being a decision to the effect that a visa cancellation be revoked). Exercise of the power results in the setting aside of a favourable decision for the person concerned and its replacement with an adverse decision.

His Honour regarded it as significant that “s 501BA is a discretionary power that resides within a legislative scheme” which provides for decisions to be made on the merits by a delegate, and by the Tribunal on review: at [107]. Accordingly, Colvin J (at [110]–[111]) expressed the view that the national interest criterion in s 501BA is directed to the reversal of a decision made by the Tribunal, so as to cancel a visa that has been granted to the person:

Considered in that context, the legislative scheme indicates a construction of s 501BA to the effect that the formation of the state of satisfaction as to whether a visa cancellation is “in the national interest” for the purposes of the pre-condition to the discretionary power to cancel a visa, requires the identification of some aspect of the national interest that means the ordinary merits adjudication process should not determine whether the person has a visa. Which is not to say that there needs to be some fault or correction required in the decision of the delegate or the Tribunal (as the case may be). Rather, it is to say that the aspect of the national interest that is the foundation for the Minister's satisfaction “in the national interest” that a decision to revoke a visa cancellation should be set aside must itself be a reason why the decision to revoke the cancellation made pursuant to the legislative scheme (itself enacted in the national interest) should be reversed. In that limited sense, there is a requirement for a form of exceptionality.

However, it is not a requirement that would mean, as the submissions for Mr Moli tended to suggest, that the power conferred by s 501BA could only be exercised in cases where the national interest being served, advanced or promoted by the cancellation was itself in some special category of exceptionality. Rather, what is required is the identification of some aspect of the national interest that means that the decision made in accordance with a legislative scheme that is itself enacted in the national interest is to be reversed.

(Emphasis in original.)

86    The point of relevance for present purposes is that the approach suggested by Colvin J, like that adopted by Owens J in CRRN, emphasises the connection between, on the one hand, an original decision made by the delegate or the Tribunal to revoke a mandatory cancellation and, on the other hand, an exercise of power by the Minister personally under s 501BA to reverse that outcome by setting aside the original decision and cancelling the visa “in the national interest”.

87    In a series of recent cases, decisions made by the Minister under s 501BA have been challenged on grounds that include an allegation of unreasonable delay in making the decision. In most of those cases, the Court has made a factual finding that the time taken for the Minister to make the decision was not unreasonable in the circumstances of the particular case, so that it was unnecessary to reach a conclusion on whether s 501BA is subject to an implied limitation requiring the power to be exercised within a reasonable time after the original decision was made by the Tribunal.

88    In Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24, Lee J dismissed an application for judicial review of a decision made by the Minister under s 501BA six months after the Tribunal had decided under s 501CA(4) to revoke the cancellation of the applicant’s visa. His Honour rejected an allegation made by the applicant that the Minister had previously considered his particular case and decided not to intervene: at [47]. Further, Lee J found that the time taken to consider the applicant’s case was “explicable on the documentary evidence”, having regard to the “backlog of cases” at the time that the Minister had approved a process to deal with such cases by setting threshold criteria for referral: at [48]. That process included an acknowledgement that the time for its completion made it “possible that a non-citizen will reside in the community for several months after their release from detention as a result of a positive AAT decision until a decision is made by the Minister personally”: ibid. In addressing an argument that the power under s 501BA had “expired” due to an unreasonable delay and a failure to exercise the power within a reasonable time, Lee J stated (at [59]):

The exercise of the Minister’s power under s 501BA is not subject to any express time limitation, and I do not consider it necessary to decide whether the exercise of the Minister’s power under s 501BA is subject to any implied limitation on time, and whether, should the power not be exercised within that period, the power somehow “expires”. I do not consider the time it took the Minister to reach its decision to be “unreasonable” in the circumstances of the case.

89    On the particular facts in Chapman, Lee J did not accept that the scheduling of weekly meetings within the Department to discuss cases that met the threshold criteria meant that the Minister was required to make decisions “in the order of weeks” (at [60]), and concluded (at [61]):

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

90    The question was next considered by McDonald J in Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266. In that case, the Tribunal made a decision under s 501CA(4) (following a previous remittal by this Court) on 5 September 2023, which was then set aside by the Minister under s 501BA on 5 June 2024, nine months later. One of the grounds of review was that there had been unreasonable delay by the Minister in making the decision. The applicant relevantly contended “that the power in s 501BA(2) of the Migration Act can only be exercised within a reasonable time after the decision of the tribunal that the Minister is considering reversing”, and that this limitation arose “by way of implication having regard to the context and purpose of s 501BA”: at [45].

91    The Minister submitted in Morgan that “there is no implied time limit within which any decision under s 501BA(2) must be made” and that, “provided a delegate or tribunal had made a decision of the kind described in s 501BA(1) at any time in the past in respect of a particular non-citizen, the Minister could lawfully exercise the power in s 501BA(2) to set aside that decision and cancel the non-citizen’s visa, no matter how much time had passed since the decision of the delegate or the tribunal was made”: at [48(1)] (emphasis added). In the result, however, McDonald J accepted the Minister’s alternative submission that, even assuming that the power in s 501BA(2) is subject to a temporal limit, the applicant had “not established that the Minister’s decision in this case was made outside of a reasonable time, or that there was a delay of such magnitude in making the decision that it calls for explanation, in the sense of requiring that the Minister answer it by evidence”: at [49]. Accordingly, his Honour did not reach a concluded view on the proper construction of s 501BA(2): at [50], [90].

92    Nevertheless, McDonald J gave some consideration to the question whether, if the power in s 501BA(2) was required to be exercised within a reasonable time, mandamus would be available to compel the Minister to make a decision once that period had elapsed. The Minister had submitted that mandamus would be the only appropriate remedy for unreasonable delay in making a decision under s 501BA, but that there would be no utility in the grant of mandamus once the Minister had made a decision even if there had been delay in doing so (cf. Sami v Commonwealth [2018] FCA 1991 at [62] (White J); see also DOB18 at [161] (Robertson J)). Justice McDonald did not accept that submission, primarily on the basis that s 501BA did not impose any relevant duty on the Minister, so that mandamus would not be available to require the Minister either to exercise or to consider the exercise of the power in s 501BA(2): at [56]–[57], [62]–[63], [70]. His Honour noted that the applicant was not seeking to enforce the performance of a duty required to be completed within a reasonable time, but rather contended that there was “in effect, an implied temporal limitation on the exercise of the power in s 501BA(2), such that the power to make a decision of the kind contemplated by that provision is no longer available to be exercised if the Minister does not make a decision to exercise it within a reasonable time”: at [58]. In such circumstances, the appropriate relief would be certiorari to quash “the purported exercise of a power that the Minister no longer then possessed”, rather than mandamus to compel “the belated performance of a continuing duty”: at [70].

93    The construction for which the applicant contended in Morgan was characterised by McDonald J as “a limitation of the same general kind” as was recognised by Dixon J and Williams J in Koon Wing Lau (at 573–574, 590), each of whom interpreted the word “upon” in the expression “upon the expiration or cancellation” of a certificate of exemption as meaning after, but within a reasonable time after the expiration or cancellation of the certificate. Justice McDonald took the view (at [61]) that

Koon Wing Lau demonstrates that a provision which confers a decision-making power that is exercisable only if a particular event has occurred may, as a matter of statutory construction, be interpreted as requiring that the power may only be exercised within a reasonable period of time after the occurrence of the event that enlivens the power.

94    In finding that the delay on the particular facts in Morgan was not unreasonable, McDonald J found that there had been no relevant delay on the part of the Minister personally, who had made the decision to exercise the power in s 501BA(2) within two days after receiving a submission from the Department: at [76]. Noting that there was no evidence before the Court in relation to the Departmental processes that led to the Minister’s decision, McDonald J concluded that the applicant had not met his onus of establishing facts which “called for an explanation” from the Minister (see AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 at [59] (Besanko and Thawley JJ)), such as “that there was a lengthy period of inaction in the preparation of the submission relating to his case, or that other like cases were unreasonably prioritised ahead of his”: Morgan at [75], [77]–[78]. In such circumstances, his Honour did not consider that the period of nine months which had elapsed between the Tribunal’s decision and the Minister’s decision could be said to involve “a delay of such a magnitude that it ‘calls for an explanation’, in the sense of being presumptively legally unreasonable”: at [79], and see also at [80], [84]–[85].

95    A similar ground of review was raised in GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415, where a period of almost seven months had elapsed between the Tribunal’s decision under s 501CA and the Minister’s decision under s 501BA, during which the applicant was living in the community. The Minister’s decision was set aside by Bennett J on the grounds that it was illogical, irrational or unreasonable, essentially because it was based on findings that were not supported by the material before the Minister, and which might have affected the evaluative judgment involved in making the decision. Justice Bennett accepted that, as a result of the exclusion of the rules of natural justice by s 501BA(3), the statute contemplated that the Minister might make a decision “absent full information” or “on the basis of incomplete information”, even where there may have been potential changes in circumstances since the original decision: at [39], [43]. While it will not be open to complain that such a decision is procedurally unfair (see Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 at [13] (Charlesworth J)), the bounds of legal reasonableness can still impose some constraints on the drawing of inferences about present circumstances from dated material: GRCF at [41] and [53] referring to LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; 179 ALD 299 at [48], [100] (Charlesworth J). On the facts in GRCF, Bennett J concluded that the Minister had erred by making such a finding about the applicant’s ongoing failure to seek psychological treatment or counselling as at the date of the Minister’s decision, without any evidence as to what had occurred in the period since the hearing before the Tribunal: at [51]–[52], [54]. In other words, rather than simply drawing logical inferences from incomplete information, the Minister erroneously “proceeded on the positive basis that the position as it was 10 months earlier persisted at the time of his decision”: at [51].

96    Relevantly to the present case, the applicant in GRCF argued that the power in s 501BA had “expired” because it was not exercised within a reasonable time after the Tribunal’s decision: at [82]. As in some of the other cases discussed above, Bennett J did not decide the question whether s 501BA(2) is subject to an implied temporal limitation, because she found that the period that had elapsed after the Tribunal’s decision was not unreasonable: at [89]. Her Honour noted that “there was no evidence about how or why the Tribunal’s decision was drawn to the Minister’s attention, or why it had taken the time it had taken for the Minister to exercise his override power”, nor (in contrast to Chapman) any evidence “about the backlog of cases, nor how long consideration of each case would properly take”: at [87], [91]. Although Bennett J expressly did not engage “in the issue of whether the power [under s 501BA] ever expires after it is enlivened” (emphasis in original), she rejected the applicant’s submission that the power expired “within one to two months” on the basis that the implication of such a limit “finds no support in the text of the legislation”: at [95].

97    Similarly, in Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471, McElwaine J was not satisfied that a period of 15 months since the Tribunal’s decision involved a failure by the Minister to exercise the power under s 501BA within a reasonable time. For such purposes, his Honour assumed in the applicant’s favour that s 501BA is subject to such an implied temporal limitation, while noting that the argument “rests on a large proposition that faces many obstacles”: at [31], [35]. Based on evidence about the assessment and processing of the applicant’s case within the Character and Cancellation Branch of the Department, McElwaine J was satisfied that a reasonable explanation had been provided and that any delay was not unreasonable: at [36]–[46].

98    Finally, in Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 496, Longbottom J concluded (at [53]) that “[t]he exercise of power under [s 501BA] 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”, but found (at [57]–[69]) that the Minister had provided a reasonable explanation for the delay and that the implied temporal limitation had not been exceeded. On the facts in Eswaran, the Minister had decided to exercise the power under s 501BA approximately three years and 11 months after the Tribunal’s decision, although the applicant’s case focused on the period of approximately two years and three months commencing from the date of a meeting between Departmental officers and Ministerial advisors following which a draft s 501BA submission regarding the applicant was to be sent to the Minister for consideration: at [57], [58(a)].

99    Justice Longbottom based her conclusion that s 501BA is subject to an implied time limit on an application of what was regarded as the “ordinary rule” referred to by Dixon J in Koon Wing Lau at 573–574, as subsequently applied in decisions such as CPCF v Minister for Immigration and Border Protection (2015) 225 CLR 514 at [313] (Kiefel J), [451]–[453] (Keane J). The “ordinary rule” was identified by Longbottom J in the following terms, “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”: at [14]. The applicant in Eswaran relied on the “ordinary rule” in support of a submission 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”: at [37]. The Minister disputed that the “ordinary rule” established an “overarching principle of general application”, submitting that it was “simply a tool to assist in the process of statutory construction”: at [38].

100    Relying principally on the elaboration of the ordinary rule by Kiefel J and Keane J respectively in CPCF, Longbottom J proceeded on the basis that s 501BA would be subject to a temporal limitation if such an implication was available having regard to the text, context and purpose of the provision: at [42]. Noting that the exercise of the power in s 501BA is dependent on an earlier event (the original decision under s 501CA), and that the basis for the exercise of the power is satisfaction that the cancellation is in the national interest, Longbottom J stated (at [49]–[50]):

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].

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.

101    In reaching this conclusion, Longbottom J was not persuaded that the non-compellable character of the power under s 501BA (that is, the absence of any statutory duty to exercise or to consider the exercise of the power) weighed against the implication of a temporal limit: at [51]. While the Minister is not required to exercise the power under s 501BA(2), Longbottom J considered that “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”: ibid.

102    Justice Longbottom did not accept that the imposition of a temporal limitation would create uncertainty in the administration of the statute, noting that “[t]he 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”: at [53].

The implication of temporal limitations

103    There is a principle of statutory interpretation that, where a statutory provision imposes a duty to make a decision without specifying a time limit within which such a decision must be made, it will usually be implied that the decision must be made within a “reasonable time”: BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [20] (Bromberg J); Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [110] (Horan J). In that context, the question whether there has been unreasonable delay in the performance of a statutory duty depends on the particular facts and circumstances, having regard to the subject matter and purpose of the legislative scheme: BMF16 at [23]–[25].

104    I accept that s 501BA can be distinguished on the basis that it confers on the Minister a non-compellable discretionary power, with no duty to exercise that power once it has been attracted or enlivened by the making of an original decision within s 501BA(1). Section 501BA does not expressly provide that the Minister does not have a duty to consider whether to exercise the power, as is the case with most other (generally beneficial) powers conferred on the Minister personally under “dispensing” provisions: see, in particular, ss 46A(7), 46B(7), 48B(6), 195A(4), 351(7) and 417(7); and see also ss 72(7), 91F(6), 91L(6), 137N(4), 197AE, 198AE(7), 199G(8), 495B(2) and 501J(8). However, as Feutrill J noted in Palmer at [163]:

Unlike the dispensing powers, there is no need to expressly qualify the power in s 501BA with a statement that the Minister is under no duty to consider exercising that power because there is virtually no likelihood that a non-citizen would request the Minister to exercise that power to cancel that person’s visa.

While this rationale does not fully explain the inclusion of an express qualification in provisions such as ss 133A(8), 133C(8) and 501A(6), each of which deals with the exercise of a power either to refuse or to cancel a visa, there is no basis on which it can be suggested that s 501BA imposes a statutory duty on the Minister to consider the exercise of the power to set aside an original decision and cancel a visa that has been granted to a person. It remains a matter for the Minister whether and when to exercise or to consider the exercise of that power.

105    Nevertheless, the absence of a duty to exercise a statutory power does not preclude an implication that the power must be exercised within a reasonable time, particularly where the power is enlivened by the occurrence of an event and is conferred for the purpose of responding to or addressing the consequences of that event. This is illustrated by Koon Wing Lau in which, as noted above, each of Dixon J (at 573–574) and Williams J (at 590) considered a power conferred on the Minister by s 4(4) of the Immigration Act 1901-1949 (Cth) to declare a person who was named in a “certificate of exemption” (and thereby authorised to enter or remain in Australia) to be a prohibited immigrant “upon the expiration or cancellation” of the certificate, so that the person became liable to deportation. This gave rise to the question whether the Minister could declare that a person was a prohibited immigrant at any time after the expiration or cancellation of a certificate, “without any limitation of the time that elapses, at any date, however distant”: at 573 (Dixon J). That question was resolved in the negative by Dixon J, who stated (at 573–574):

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 SR (NSW) 433; 64 WN 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. 

106    To similar effect, Williams J in Koon Wing Lau (at 590) agreed that “upon” in the relevant provision meant “after”, rather than immediately, and that “it does not … mean an indefinite time afterwards but within a reasonable time afterwards”. Accordingly, Williams J considered that the declaration was required to be made immediately or within a reasonable time after the expiration or cancellation of the certificate. Chief Justice Latham (at 559) agreed that “upon” did not mean immediately or instantaneously, stating that “[t]he proper construction of such a provision is that when and after the event of expiration or cancellation has happened the Minister may make the declaration referred to in the subsection”. However, Latham CJ did not address whether the power was required to be exercised within any particular time.

107    I note that some years prior to Koon Wing Lau, and in a different context, the High Court had adopted an analogous approach to the construction of a provision in the Matrimonial Causes Acts 1864 (Qld) that conferred power on a court to order a husband to pay maintenance to his wife “on” any decree for dissolution of marriage: Moss v Moss (1936) 55 CLR 166. While concluding that the wife’s delay in making an application for a maintenance order was not unreasonable, Starke J (at 177) stated that an application made after a decree should be made within a reasonable time of the degree being made. Justice Dixon (at 179) referred to authorities to the effect that “the word ‘on’ was equivalent to ‘on the occasion of’ in the wide and, no doubt, proper sense of that expression”, but stated that “[i]t is necessary, no doubt, in each case to ascertain whether more than a reasonable time has elapsed” and that “what is a reasonable time must always be judged according to circumstances which are relevant to the subject in hand”. In the context of an application for maintenance, involving “a re-arrangement of the relations of two parties who have been husband and wife, after their matrimonial relations have been determined”, the pronouncing of the decree of dissolution was “connected with the order for permanent maintenance and [was] the ‘occasion of’ the latter order”: ibid.

108    It is open to debate whether the “ordinary rule” referred to by Dixon J in Koon Wing Lau was directed to the particular issue concerning the construction of the word “upon”, or was referring to a more general principle of statutory interpretation. Subsequent authorities, however, appear to have recognised a broader principle, under which a statute that requires or authorises something to be done without specifying any period for performance will “ordinarily” (that is, subject to a contrary intention) be construed as requiring that thing to be done within a reasonable time, consistently with the subject matter and purpose of the statute. This principle may be particularly relevant in cases where the statutory duty or power arises on and in relation to the occurrence of a given event or circumstance.

109    The relevant passages from Koon Wing Lau have been followed and applied in other contexts. For example, in Donovan v City of Sale [1979] VR 461, the principle was applied in relation to a power under the Health Act 1958 (Vic) to suspend or revoke the registration of premises “[o]n the second or any subsequent conviction of any person for an offence against this Act” committed in, on, or in respect of those premises. Justice Murphy (at 468) rejected a submission that the word “on” simply described the time when the power arose (i.e. by identifying a pre-condition to the exercise of the power) or meant “at any time after”. Rather, relying on cases such as Koon Wing Lau, Murphy J concluded that the power was required to be exercised subsequent to and within a reasonable time of the relevant conviction: at 469. There were some additional textual considerations which supported this construction, in particular, the fact that the words “or any subsequent conviction” would be superfluous if the power was available at any time after an initial conviction. However, the construction was also consistent with the subject matter of the power and its relationship to the conviction by which it was enlivened. In this regard, Murphy J relevantly stated (at 470):

The power is, in my opinion, limited. It is not a discretion at large. It must be exercised, if it is to be exercised at all, subsequent to and consequent upon the conviction. At least in this sense it is a power which has a relationship to the particular conviction in question.

At this point I am considering as a separate issue, insofar as it can be so considered, whether there is a temporal connection necessarily to be implied between, on the one hand, the right to exercise the discretion and, on the other hand, a second or subsequent conviction.

In my opinion it cannot be said that the council has so many days, or weeks or months, within which to exercise this discretionary power. The circumstances will vary in each particular case.

However, in my opinion, the discretion can only be exercised within a reasonable time after the conviction in question.

In my view, although these observations were made in an entirely different statutory context, they are apposite to the construction of s 501BA in the present case.

110    In Kardas v Australian Securities Commission (1998) 53 ALD 303, Heerey J set aside a decision under former s 600(3) of the Corporations Law to prohibit the applicant from managing a corporation for a period of two years. Section 600 relevantly provided that, where a person was a director of two or more relevant bodies that had been the subject of a liquidator’s report within the previous seven years, the Commission could give the person a notice requiring him or her to show cause why he or she should not be prohibited from managing corporations for a period not exceeding five years. On an application for judicial review of the disqualification decision, one of the arguments raised by the applicant concerned the delay in making the decision from the date of the second liquidator’s report. In concluding that the total elapsed time of three years and eight months was “well beyond the bounds of reasonableness”, Heerey J relevantly said (at 313):

A statutory power (such as the power of prohibition under s 600) conditioned upon the occurring of a certain event (such as the making of a s 533 report in respect of two or more companies) will often be subject to an implied requirement that it be exercised within a reasonable time: Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573-574, Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 at 383, Re Federal Commissioner of Taxation: ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578, Repatriation Commission v Morris (1997) 26 AAR 284 at 289. I am satisfied that the s 600 power is subject to such a requirement.

Once a liquidator’s report in respect of a second “s 600 company” triggers the power of disqualification, that power, if it is to be exercised at all, should be exercised with reasonable promptness. A person potentially the object of that power should not be kept in an indefinite state of uncertainty. More importantly, since the purpose of a s 600 disqualification is prophylactic rather than punitive, there should be as little delay as possible in taking steps to protect the public.

111    The decision in Kardas was subsequently distinguished in Culley v Australian Securities and Investments Commission (2010) 183 FCR 279, which was concerned with a disqualification decision made pursuant to an analogous provision contained in s 206F of the Corporations Act 2001 (Cth). In Culley, the Full Court (Ryan, Mansfield and McKerracher JJ) rejected an argument that a show cause notice under s 206F was required to be issued within a reasonable time after the statutory conditions for issuing such a notice had been satisfied. In addressing the question whether the statutory power of disqualification contained in s 206F was subject to an implied requirement that it be exercised within a reasonable time after the lodgement of the liquidator’s report about the second corporation’s inability to pay its debts, the Court concluded (at [30]) that the language and structure of the provision excluded any implied requirement for the Commissioner to exercise its power within a shorter period than the seven years immediately before the giving of a “show cause” notice, which was the period expressly stipulated in s 206F(1)(a). The lapse of time was otherwise regarded as a factor to be weighed in the exercise of the discretion conferred by the provision: at [35]–[36].

112    The Full Court in Culley did not consider that the observations made by Heerey J in Kardas supported the implication of a condition requiring the power to be exercised within a reasonable time after the second liquidator’s report. The Court noted that the statutory provision considered in Kardas was in different terms, and regarded Heerey J “as saying no more, in that case, than that a decision-maker acting under such a provision ought to discharge his or her functions with reasonable promptness, and so much was to be inferred from the terms in which the power was conferred”, and not as “elevating that requirement to a freestanding condition precedent to the exercise of the power, or erecting a legal constraint on ASIC’s ‘power to decide’”: at [36]. Accordingly, any delay was a relevant consideration in exercising the statutory discretion, and did not preclude the exercise of the power to disqualify beyond the seven-year “window” for which the provision expressly provided: at [41], [44], [50].

113    The principle of interpretation arose for consideration in some of the judgments in CPCF. In that case, the High Court by majority upheld the lawfulness of the plaintiff’s detention pursuant to s 72(4) of the Maritime Powers Act 2013 (Cth), which authorised a maritime officer to detain and take a person to a place, including a place outside Australia. The facts of the case involved the plaintiff having been taken into detention and placed on a Commonwealth ship in Australia’s contiguous zone near Christmas Island, from where he was taken towards India: CPCF at [1]–[3] (French CJ), [56]–[58] (Hayne and Bell JJ), [165]–[167], [191] (Crennan J), [230]–[234] (Kiefel J). The plaintiff did not disembark in India for “operational and other reasons”, and was taken instead to the Territory of the Cocos (Keeling) Islands. The Court was required to consider the limits on the exercise of the relevant maritime powers, which included geographical limitations and purposive limitations: see e.g. CPCF at [63] (Hayne and Bell JJ). Some consideration was also given to the temporal limitations on the relevant powers.

114    It appears to have been accepted in CPCF that the powers conferred by s 72(4) of the Maritime Powers Act were subject to an implied limitation which required them to be exercised within reasonable times: see at [52] (French J), [96] (Hayne and Bell JJ), [197], [200] (Crennan J), [313]–[314] (Kiefel J), [376] (Gageler J), [451]–[453] (Keane J). To some degree, this conclusion was supported by reference to Koon Wing Lau.

115    In particular, Kiefel J cited the judgments of Dixon J and Williams J in Koon Wing Lau in support of the following proposition (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.

(Footnote omitted.)

While Kiefel J considered that s 72(4) of the Maritime Powers Act “[did] not admit of that possibility”, in so far as it would render nugatory the choice as to the destination to which a person was to be taken, she nevertheless accepted some implied temporal requirements with respect to the exercise of the power, such that “[t]he decision where to take a person such as the plaintiff would have to be made within a reasonable time and the time taken to reach the chosen destination would also have to be reasonable”: at [314].

116    Justice Keane referred to the Commonwealth’s concession that the detention and taking authorised by s 72(4) of the Maritime Powers Act was required to be effected within a reasonable time, and stated that such a concession “was rightly made, consistently with the principle of interpretation that ordinarily applies in cases where no period is specified in a statute for doing an act authorised or required by the statute”: at [451], citing Koon Wing Lau. After noting that the power was exercisable for specified purposes, Keane J referred to “the application of the ordinary rule that a power must be exercised within a reasonable time having regard to the purpose for which it was conferred and the circumstances in which it falls to be exercised”: at [453].

117    The purposive aspects of the power conferred by s 72(4) of the Maritime Powers Act were also emphasised by French CJ, who stated (at [45]) that the power did not authorise indefinite detention and could “only be exercised for a reasonable time having regard to its statutory purpose”. The Chief Justice went on to state that “[g]iven the generality with which the power conferred by s 72(4) is expressed, the primary constraint must be that its exercise is consistent with its statutory purpose in the circumstances of the case”, and that this may have enabled the ship “to remain at sea for as long as was reasonably necessary to determine whether negotiations were likely to yield an agreement to receive the plaintiff and other persons on the Commonwealth vessel”: at [50].

118    Justice Crennan noted (at [184]) that there was no express statutory requirement that a person detained under s 72(4) of the Maritime Powers Act be taken to a place “as soon as practicable”. Nevertheless, her Honour referred (at [200]) to “the need to exercise the power within a reasonable time” as an implied limitation, relying on Koon Wing Lau. It is apparent that the Commonwealth’s submissions had accepted such a limitation: see at [197].

119    Finally, Gageler J (as his Honour then was) stated (at [376]) that the power to detain and take a person to a place under s 72(4) was a “composite power”, noting that detention of a person under that provision triggered “a concomitant duty to take the detained person to a place”. That duty was subject to an implied temporal limitation:

Like any other statutory duty for which no time for performance is specified, the duty to take, once triggered by detention, must be completed within a reasonable time [Koon Wing Lau at 574].

120    Both the facts of CPCF and the statutory power there considered are far removed from the present case. It might be said that the temporal question in CPCF was concerned with the time within which the power to detain and take a person to a place outside Australia was required to be effectuated or completed, rather than any time by which that power must be exercised. In other words, as Gageler J recognised, an exercise of the power to detain a person gave rise to a duty to take him or her to the relevant destination, upon which his or her detention would case. It was in that context that it was necessary to imply temporal limits on the duration for which the power could be exercised and the person could be lawfully detained. However, those limits were not directly in issue in CPCF, and were uncontroversial between the parties to the case.

121    The judgments in CPCF are nevertheless useful because they illustrate the application of the principle of interpretation recognised in Koon Wing Lau to a statutory provision that did not contain language such as “upon” or “on” as a textual foothold for the implication of a temporal limitation on the exercise of the power. Accordingly, an implication that a statutory power must be exercised within a reasonable time can in appropriate cases be drawn from the context and purpose of the statute in question.

122    Nor can the principle be confined to the implication of a temporal limit on the performance of statutory duties. There was no duty to exercise the power under s 4(4) of the Immigration Act 1901-1949 (Cth) that was considered in Koon Wing Lau. In CPCF, the principle of interpretation was couched by Keane J in terms that encompassed acts “authorised or required” by statute, where no period is specified for doing the act. Such a principle will not necessarily be applicable to every power conferred by statute. Further, its application may be displaced by the terms of the statute, or by the subject matter and purpose of the statutory power. Thus, an implication that a statutory power must be exercised within a reasonable time will ultimately depend on the proper construction of the particular statute.

123    It is necessary in this context to address some observations made by Bromberg J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1. The decision in KDSP was considered by McDonald J in Morgan at [64]–[69], and I respectfully agree with his Honour’s analysis of that decision. In KDSP, the Minister exercised the power conferred by s 501A(2) to set aside a decision by the Tribunal not to refuse to grant a visa to the appellant on character grounds under s 501(1) of the Migration Act. It may be noted in passing that the rules of natural justice were applicable to an exercise of that power. The Minister’s decision was made approximately 18 months after the Tribunal’s decision. At first instance, the primary judge was not satisfied that there had been unreasonable delay in making the decision under s 501A(2), and did not decide whether or not that power was subject to an implied limitation requiring that it be exercised within a reasonable time: see KDSP at [108] (Bromberg J), [166]–[167], [171] (O’Callaghan and Steward JJ). On appeal, a majority of the Court similarly did not determine the question whether there was “an implied duty on the Minister to exercise the power under s 501A(2) within a reasonable time”: at [174]–[175] (O’Callaghan and Steward JJ). The majority found that it was not established that there had been a failure to exercise the power under s 501A(2) within a reasonable time, assuming there to be such a duty: at [175]–[176] (O’Callaghan and Steward JJ).

124    In his separate concurring judgment in KDSP (at [105]–[128]), Bromberg J addressed the question whether the power under s 501A(2) is “time limited”. Without determining whether or not there had been unreasonable delay (although acknowledging that the appellant’s complaint in that regard was “not without some merit”), Bromberg J concluded that s 501A(2) was not subject to “an implied time limitation on the refusal power in s 501A(2) which causes the power to lapse if it [is] not exercised within a reasonable period of time”: at [113]. This conclusion must be regarded as obiter, given that the question was not determined by O’Callaghan and Steward JJ.

125    The appellant in KDSP had sought to rely on “the ‘ordinary rule’ that powers must be exercised within a reasonable time as expressed by Dixon J in Koon Wing Lau”: at [105], [117] (Bromberg J). While the Minister disputed that the “ordinary rule” to which Dixon J referred was intended as a statement of general application, Bromberg J did not find it necessary to determine “whether the observation made was intended to be applicable generally to the exercise of all powers”: at [120]. His Honour considered that, although s 501A(2) was “structured differently” to the statutory provision considered in Koon Wing Lau, it was “essentially analogous” in so far as the exercise of the power was “dependent on an earlier event”, namely the making of an original decision by a delegate or the Tribunal, as “a prerequisite for the application of s 501A and therefore the exercise of the power in s 501A(2)”: at [121]. Justice Bromberg did not attach any significance to the fact that the power under s 501A(2) was not compellable. In such circumstances, Bromberg J stated (at [122]):

Accordingly, Dixon J’s analysis in Koon Wing Lau is apposite. The s 501A(2) refusal power is a power exercisable “after” the making of the “original decision” and, on the reasoning of Dixon J, a temporal limitation of the kind his Honour identified may be implied.

126    However, Bromberg J ultimately declined to imply a temporal limitation in relation to the exercise of the refusal power in s 501A(2)(a), following an original decision by the Tribunal under s 501A(1)(c), essentially because the exercise of that power was “a step in the performance of the duty imposed by s 65 [of the Migration Act]”, namely, the duty to grant or to refuse to grant a visa, after considering a valid visa application: KDSP at [123]–[124]. This is because s 65 incorporates a requirement that the Minister, when making a decision in relation to a valid visa application, must be satisfied that “the grant of the visa is not prevented by … s 501 (special power to refuse or cancel) or any other provision of this Act”: s 65(1)(a)(iii). The duty to decide a visa application is enforceable by mandamus. Indeed, the appellant in KDSP had commenced his judicial review proceeding prior to the Minister’s decision under s 501A(2), seeking an order in the nature of mandamus in order to compel the Minister to make a decision on his visa application. As the power to grant or refuse to grant a visa could not lapse by effluxion of time, Bromberg J regarded the implication of a temporal limit on the refusal power in s 501A(2) as unsupported by the statutory text or any discernible legislative policy: at [126]. His Honour stated (at [127]–[128]):

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.

The power in s 501A(2) to cancel a visa raises very different contextual considerations but those need not be here considered.

127    As McDonald J recognised in Morgan (at [69]–[70]), the approach to s 501A(2) that was adopted by Bromberg J in KDSP cannot necessarily be translated to the power in s 501BA(2), which raises different contextual considerations. In particular, mandamus is not an available remedy for any failure by the Minister to make a decision under s 501BA(2) within a reasonable time, nor would it be a desirable remedy for a person whose interests would necessarily be adversely affected by any such decision. In those circumstances, the contention is that the Minister no longer has power under s 501A(2) once a reasonable time has expired, and that any purported decision under s 501A(2) should be quashed. If such relief were granted, the person would remain the holder of the visa that was reinstated by the Tribunal’s decision. At the risk of being unduly colloquial, the argument advanced by an applicant in such circumstances in relation to the power conferred by s 501BA(2) is along the lines of “use it or lose it”.

128    The implication of a temporal limit on the exercise of a statutory power that does not specify a time within which it can be exercised is consistent with principles of interpretation applicable in some private law contexts, such as the construction of terms of a contract that confer contractual rights on a party: see e.g. Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679 at [99]–[111] (Bell P), [218] (Emmett AJA); Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13 (Dixon J) (“[a]n implication of a reasonable time when none is expressly limited is, in general, to be made unless there are indications to the contrary”). Of course, such analogies cannot be taken too far, but they at least serve to confirm that the notion that a right or power can be construed as lapsing or expiring if it is not exercised within a reasonable time is not unknown to the law.

Is s 501BA subject to an implied temporal limitation?

129    The Minister submitted that the text of s 501BA(2) does not provide any support for an implied temporal limitation on the exercise by the Minister of the power to set aside an original decision made under s 501CA and cancel a visa that has been granted to a person. The power is non-compellable and vested in the Minister personally, and its exercise is predicated on satisfaction that the cancellation was in the national interest. The Minister sought to distinguish the observations in Koon Wing Lau as having been addressed to the construction of a statutory provision conditioned by the word “upon”, whereas s 501BA did not contain any such language to provide a textual foundation for the implication of a temporal limit on the exercise of the power.

130    Nevertheless, I consider that the text, context and purpose of s 501BA provide an analogous foundation for the implication of a temporal limit. It is a pre-condition to the application of s 501BA that an original decision has been made by a delegate or by the Tribunal under s 501CA to revoke a mandatory cancellation decision. An exercise of power under s 501BA(2) is in terms directed to setting aside such a decision. A decision made by the Minister under s 501BA(2) is the culmination of a process that begins with a mandatory cancellation decision under s 501(3A). If the cancellation is revoked under s 501CA(4), whether on the basis that the person passes the character test or that there is another reason why the cancellation should be revoked, s 501BA confers on the Minister a power to override that decision and cancel the visa if satisfied that the cancellation is in the national interest. The exercise of that power is inherently connected with the original decision, in that it is exercised for the purpose of addressing the outcome of, or the state of affairs produced by, the original decision, namely the reinstatement of the person’s visa and (often) their release into the community.

131    As discussed above, the original decision is not merely a historical event that attracts a fresh power which can be resorted to at any time by the Minister to cancel the visa of a person who happens to have passed through the gauntlet of a previous decision-making process under s 501CA, particularly in circumstances where that power is shorn of requirements that apply to the exercise of other powers to cancel a visa on character grounds. It is not designed to allow the Minister to “wait and see” whether the person’s visa should be cancelled in the light of subsequent events. It might be tempting to exercise the power under s 501BA through the lens of hindsight, but that is not the purpose to which the power is directed. In the present case, for example, the Minister clearly disagreed with the Tribunal’s conclusions on the applicant’s rehabilitation and risk of reoffending, in circumstances where the applicant had subsequently gone on to reoffend. However, the power under s 501BA is not conferred for the purpose of imposing a supervisory regime in order to monitor whether or not predictive findings made by the Tribunal in relation to the protection of the community are borne out in the future.

132    In opposing the implication of any temporal limit on the power conferred by s 501BA, the Minister submitted that “the imposition of a requirement that a decision be made within a reasonable time would be contrary to the purpose and object of s 501BA, as it would impede the ability of the Minister to take into account the changing political policies, values and priorities”. The Minister referred to the possibility of a change in Government or a change of Minister, as well as “developments in relation to the visa holder over time which impact upon whether the Minister considers that it is in the public interest for the person’s visa to be cancelled”. The Minister sought to draw support from observations made by Derrington J in Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 285 at [31], who acknowledged that “the government may alter its policy as to when and in what circumstances consideration of the power in s 501(2) might be exercised”, including as the result of a change in the party in control of the government, and that “[t]here is nothing in the legislation to suggest that government policy in relation to s 501(2) should be stifled by reason of a mere lapse in time”. However, those observations were directed to s 501(2) and the time between the commission of offences by a non-citizen and the exercise of the power to cancel his or her visa on character grounds. The power conferred by s 501BA(2) is materially different. The Minister’s submissions are otherwise inconsistent with the context and purpose of s 501BA, and the “flexibility” for which the Minister contends is essentially an attempt to treat s 501BA as a freestanding cancellation power applicable to a cohort of non-citizens who have previously received a favourable decision by a delegate or the Tribunal under s 501CA(4). Such a construction is not supported by the language of s 501BA(2), let alone its context and purpose and its place within the statutory scheme.

133    The Minister also submitted that the implication of a temporal limit on the power conferred by s 501BA(2) would give rise to administrative uncertainty, including in circumstances where “the Minister cannot have knowledge of every decision made by the tribunal or delegate or the details of such decisions, or of all further developments in every case after the tribunal decision”. In practice, and as is suggested by the evidence in the present case, the Minister is likely to have constructive, if not actual, knowledge of decisions made under s 501CA by a delegate or by the Tribunal shortly after such decisions are made. The Minister will have been a party to any proceedings before the Tribunal, and the Department will invariably be notified of the outcome of those proceedings: cf. LJTZ at [79] (Charlesworth J). As explained above, while subsequent events or circumstances might be taken into account by the Minister, the principal purpose of the power conferred by s 501BA is not to await further convictions or other factual developments occurring after the original decision.

134    It is true that the consequences of the implied temporal limit will be different from those arising from a requirement that a statutory duty be performed within a reasonable time. Rather than rendering the repository of the power amenable to mandamus, unreasonable delay amounting to a failure to exercise the power within a reasonable time will prevent the power from being exercised at all. However, that is a reflection of the fact that the purpose for which the power is conferred will have lapsed, so that any purported exercise of the power can no longer be said to be directed to the state of affairs produced by the original decision. The availability of the power under s 501BA(2) will depend on the particular facts and circumstances of each case. However, this is not a unique situation in administrative law, including in relation to the application of principles of legal reasonableness or the existence of certain jurisdictional facts (for example, whether or not a person is an “alien” within s 51(xix) of the Constitution: see Love v Commonwealth (2020) 270 CLR 152).

135    The Minister argued that the power in s 501BA(2) is not enlivened by the making of an original decision within the meaning of s 501BA(1), in that the power is not available unless and until the Minister was satisfied of the matters in s 501BA(2)(a) and (b): namely, that the person does not pass the character test on the specified bases, and that the cancellation is in the national interest. I do not accept this argument, in so far as it was intended to suggest that the power under s 501BA(2) cannot be described as “responsive” to the original decision, or that any question of delay cannot commence before the time at which the Minister forms the requisite state of satisfaction. As expressly provided in s 501BA(1), the making of the original decision constitutes the factum that attracts the application of the section. The matters of which the Minister must be satisfied under s 501BA(2)(a) and (b) themselves involve the exercise of an evaluative judgment, and it is artificial to divorce them from the discretionary aspects of the exercise of the power conferred by s 501BA(2), particularly for the purposes of any implied temporal requirement that the power must be exercised within a reasonable time. The relevant reference point for such purposes is the time at which the original decision was made, which attracts the application of s 501BA and the power conferred by subs (2).

136    It may be accepted that, in contrast to the power conferred by s 501(2), s 501BA allows the Minister to revisit the question whether the person’s visa should be cancelled on the same factual basis that attracted the power to make the mandatory cancellation decision under s 501(3A) and the original decision under s 501CA: cf. Makasa at [48], [53]. Thus, in Makasa (at [53]), Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ said in relation to s 501A:

As powers of ministerial override, each of the specific powers conferred on the Minister by s 501A(2) and s 501A(3) can be exercised by the Minister without need for any change to the factual basis on which the delegate or the AAT formed a reasonable suspicion that the visa holder did not pass the character test in making the decision not to cancel a visa

The power conferred on the Minister personally by s 501BA stands in a similar position, as was subsequently confirmed by Gageler J in YTLT v Minister for Home Affairs [2021] HCATrans 177. In that case, the plaintiff argued that a decision made by the Minister under s 501BA(2) was beyond power in circumstances where there was no change to the factual basis on which the Tribunal made its decision. This argument was rejected by Gageler J, who stated:

The plaintiff here seeks to rely on [Makasa]. However, that reliance is misplaced. Section 501BA(2) confers a power, which can be described as one of “ministerial override”, analogous to the power of ministerial override conferred by s 501A(3), which was held in Makasa at [53] to be capable of being exercised by the Minister without need for any change to the factual basis on which the Tribunal made its decision.

137    Consistently with the decision in Makasa, the powers conferred by s 501(2) or (3A) cannot be re-exercised by the Minister or a delegate in the absence of subsequent events or further information which “provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test”: Makasa at [48], see also at [57]; cf. XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 at [71]–[76] (Burley J). Accordingly, where a delegate or the Tribunal has decided to revoke the mandatory cancellation of a visa that has been granted to a person, and the Minister has not exercised the power in s 501BA(2) to set aside that decision and cancel the visa, the person remains subject to the possible exercise of the powers to cancel that visa or a subsequently granted visa in the event that he or she fails the character test on a different factual basis, such as a new conviction or sentence of imprisonment or “the coming into existence of a new substantial criminal record” within the meaning of s 501(6)(a) and (7): Makasa at [48].

138    In so far as the power of Ministerial override under s 501BA stands as an exception to this position, it does so in a context where the power is exercised after and in response to an original decision under s 501CA to revoke a mandatory cancellation decision and to reinstate a visa that has been granted to a person. In the case of s 501BA, the exercise of the power is freed from the requirements of natural justice, and without any subsequent opportunity to seek revocation of the Minister’s decision. In a context where the person will have been afforded a hearing before the delegate or the Tribunal, this makes sense in circumstances where the Minister’s decision is made in response to the outcome of the Tribunal’s decision. However, s 501BA would lose coherence with the statutory scheme if it were to be construed as conferring a power of indefinite duration which could be exercised by reference to subsequent events that might occur long after the original decision to which the power is directed, and which would otherwise be incapable of attracting the fresh exercise of the power to cancel a visa under s 501(2) or (3A).

139    While it is permissible for the Minister to have regard to events and circumstances that might post-date the original decision when considering whether to exercise the power in s 501BA(2), the focus of the power is the outcome of the original decision, and the state of affairs produced by the revocation of the cancellation of the visa that was granted to the person. It can be accepted that the Minister is required to be satisfied that the cancellation is in the national interest at the time that the power is exercised: see LJTZ at [45], [48] (Charlesworth J). In particular cases, that might raise issues about the findings that can rationally be made and the inferences that can rationally be drawn from the material available to the Minister. But in circumstances where the Minister is not required to provide the person with any further opportunity to be heard, it is implicit that the circumstances produced by the original decision will be the foundation for any exercise of power under s 501BA(2).

140    Accepting that the power under s 501BA must be exercised for the purpose of setting aside an original decision and cancelling the visa, it is a short step to imply a temporal limitation on the exercise of the power by reference to the making of the original decision. Notwithstanding the absence of words such as “upon” or “on” in s 501BA(2), the structure and context of the provision essentially place it in the same territory as the provisions considered in cases such as Koon Wing Lau. The text, context and purpose of s 501BA are sufficient to attract the principle of statutory construction referred to in Koon Wing Lau and subsequent cases, to the effect that an exercise of power under s 501BA to set aside an original decision and cancel a visa must be exercised within a reasonable time after the original decision is made by the delegate or the Tribunal. If the power is not exercised within a reasonable time, it will lapse or expire and will no longer be available for exercise by the Minister. There is nothing in the language or context of s 501BA that is inconsistent with or excludes an implication that the power must be exercised within a reasonable time. Such a construction is supported by the extrinsic material and consistent with the mischief which s 501BA was intended to address.

Was the Minister’s decision made within a reasonable time?

Evidence and agreed facts regarding consideration under s 501BA

141    The Minister relied on an affidavit of Daniela Frzovic sworn 6 March 2025 and its annexures DF-01 to DF-06. Ms Frzovic is a Director in the Character Delegate and Assurance and Legal Engagement section of the Character and Cancellation Branch in the Character, Cancellation and Case Resolution Division in the Immigration Compliance Group of the Department.

142    In her affidavit, Ms Frzovic described the progress of the applicant’s case between the Tribunal’s decision to revoke the cancellation of his visa on 13 April 2021 and the Minister’s decision under s 501BA(2) on 8 June 2024. Her evidence, together with the annexures to her affidavit, may be summarised as follows.

(a)    On 15 April 2021, two days after the Tribunal’s decision, a new Ministerial direction under s 499 of the Migration Act, “Direction 90 — visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”, came into force. Direction 90 was given by the Minister on 8 March 2021, with effect from 15 April 2021. Ms Frzovic stated that “[i]t is the Department’s process to provide newly enacted ministerial directions to all clients with outstanding matters in order to give them an opportunity to respond regardless of whether or not the decision-maker is required to apply the relevant Direction”, and that in her experience “the commencement of a new ministerial direction has a significant impact on case processing as all cases are put on hold while the impact of the new Direction is assessed, guidance is developed and templates are updated and cleared”. I interpose that there is no evidence that Direction 90 was provided to the applicant at this time, or at any subsequent time.

(b)    On 30 April 2021, a client brief was sent from the Character and Cancellation Branch in the Department to the office of the Minister (the Hon Alex Hawke MP), in order to ascertain whether the Minister wished to consider the exercise of his personal power to set aside and substitute the decision of the Tribunal with an adverse decision. The client brief identified two “potential options”, that it was open to the Minister to consider using his personal powers under s 501BA or for the Department to take no further action in the matter. The brief indicated that, if the Minister wished to consider using his personal powers to set aside the Tribunal’s decision, a submission would be prepared for the Minister’s consideration.

(c)    On the same date (30 April 2021), a case officer in the NCCC started to prepare a draft s 501BA submission (the April 2021 draft submission). A copy of the April 2021 draft submission was admitted in evidence. Although it did not yet appear to include any attachments, the body of this draft submission bears some similarities to the submission that was ultimately provided to the Minister when making his decision on 8 June 2024.

(d)    A further draft s 501BA submission was prepared by the case officer on 25 June 2021, which was updated by the case officer’s manager on 30 June 2021 (the June 2021 draft submission). A copy of the June 2021 draft submission was also admitted in evidence. This draft submission included an index of attachments comprising “relevant material” for the applicant, as well as a draft decision record and draft statement of reasons for decision.

(e)    In an email dated 30 June 2021, the manager suggested some changes to the attachments to the draft submissions, and stated “[o]nce that is done it should be ready to move on, though at the moment it is not clear whether all the BA cases need to go to [Legal Assurance]”.

(f)    Ms Frzovic said that her understanding was that “the case would have been progressed and the matter referred to the Legal Assurance Team”. She also understood that the Legal Assurance Team “held off progressing the referral” due to the potential impact of a pending appeal before the Full Court of this Court, in which judgment was ultimately handed down on 9 November 2021: see Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565. An application by the Minister for special leave to appeal was subsequently dismissed by the High Court on 5 May 2022.

(g)    On 11 April 2022, the Australian Government entered a caretaker period following the announcement of a federal election to be held on 21 May 2022.

(h)    On 3 May 2022, the Legal Assurance Team referred the draft s 501BA submission in relation to the applicant back to the case officer at the NCCC to be updated. In an email dated 3 May 2022, an Assistant Director in the Legal Assurance Team attached a spreadsheet with the file name “s501 cases returned for follow up.xlsx”, and informed “managers” in the NCCC that “a plausible course of action would be to rework the cases by obtaining updated information (i.e. NCHCs at the very least and any other standard checks we can do without engaging directly with the non citizen)”. The reference to “NCHCs” may be taken to mean National Criminal History Checks. The Assistant Director outlined the proposed courses of action as follows:

-    If there is no new information to come to light (e.g. new offending) then proceed to submission

-    If there is new information to come to light or there are particular updates or points of information to note that need to go on an NJ, then send these up to the MO, through the AS.

-    Noting that any subs/SoRs advanced will need to go on an updated template

The Assistant Director noted that it had been mentioned at a previous manager’s meeting regarding the s 501BA case load that “the reason why these cases had been on hold with [Legal Assurance] was that we were waiting on the outcome of the CWY20 appeal”. The email concluded by advising NCCC managers as follows: “Consider the cases returned to you for rework from [Legal Assurance]”.

(i)    On 23 May 2022, the Assistant Director in the Legal Assurance Team sent an email to the manager at the NCCC, in response to a query from the case officer about whether identified cases, including the applicant’s case, were “with” Legal Assurance. In relation to the applicant’s case, the NCCC manager stated that the case had been “submitted to [Legal Assurance] for review of NRO”, and had been “parked with [Legal Assurance] pending resolution of the CWY20 case”, before having been returned to the case officer on 3 May 2022 “to effect on new template”. The Assistant Director replied that all of the cases identified in the manager’s email were s 501BA cases that had been “parked in [Legal Assurance] for some time due to the evolving case of CWY20 (considering NRO in the NI)”. Although not addressed directly by the evidence, I presume that this was a reference to “non-refoulement obligations in the national interest”, which was an issue raised by the CWY20 litigation. The Assistant Director stated that he had returned most of the identified cases to NCCC on 3 May 2022 “to commence requesting updated NCHCs and any other information that may be relevant – given the passage of time since they were originally drafted”. The Assistant Director noted that “the templates” had been amended following the Full Court’s decision in CWY20 on 9 November 2021, but that he thought Legal Assurance “was waiting on whether or not the [High Court] would accept the Minister’s appeal”, which might have meant “further updates to this area”. However, as the High Court had dismissed the Minister’s application for special leave to appeal on 5 May 2022, “therefore we can accept CWY20 as being settled and good law”. The Assistant Director referred to a discussion with the NCCC case officer “at the time, that given the focus of the branch was on detention cases, and that these s501BA’s would need to wait”. The email from the Assistant Director concluded:

So in terms of next steps, given the outcome of the election, I suggest that you put those cases on hold, pending instructions from the new [Minister’s Office]. If they agree they want to see these as BA’s then the case officers would then commence requesting updated NCHCs (and any other new information that may eventuate from that).

(j)    On 1 June 2022, the Hon Andrew Giles MP was sworn in as the Minister for Immigration, Citizenship and Multicultural Affairs. Ms Frzovic gave evidence of the process that is engaged in by the Department when there is a change in Government or a change in Minister, including periods of detailed consultation and briefing. This can include drafting revised arrangements for the referral of cases to the Minister for consideration of the exercise of personal powers under the Migration Act. Ms Frzovic states that “each Minister will have different preferences about what types of cases they wish to personally consider as opposed to which cases may be considered by a character delegate as well as how to prioritise the high-volume and high-risk case load”. Ms Frzovic said that “[a]ny change to the Minister accordingly significantly impacts the areas reliant on Ministerial direction and decision making”.

(k)    Ms Frzovic stated her understanding that the work of the NCCC was impacted by the judgment in Pearson v Minister for Home Affairs (2022) 295 FCR 177, which was handed down on 22 December 2022. Ms Frzovic said that “[t]he outcome in that matter required review of the NCCC’s caseload across some 800 cases to identify cases affected by the novel error identified and disrupted business until mid-February 2023”. I note that Ms Frzovic conceded in cross-examination that she had gone on leave from the end of December until February, and that she did not have any specific knowledge of how the decision in Pearson had affected the progression of the applicant’s case.

(l)    On 23 January 2023, the Minister made a new direction under s 499 of the Migration Act, Direction 99, which came into force on 3 March 2023. Ms Frzovic stated that, as a consequence of the new Ministerial direction, it was necessary for cases in progress that were not able to be finalised before 3 March 2023 to be put “on hold”. In this regard, she said that “[i]t 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”.

(m)    On 29 March 2023, the Minister endorsed updated referral thresholds set out in a document entitled “Management of the Administrative Appeals Tribunal (AAT) set aside caseload” (the Thresholds Brief).

(n)    On 15 June 2023, the applicant’s case was assessed against the updated referral thresholds by the Character and Cancellation Branch.

(o)    On 17 October 2023, the Minister’s Office was provided with a schedule of cases that had been reassessed using the updated referral thresholds. The applicant’s case was included in the schedule as a case that had been determined to meet the updated referral thresholds and “continue[d] to require escalation to the Minister’s office”.

(p)    On 31 October 2023, the Minister’s Office confirmed that the Minister had requested a s 501BA submission in relation to the applicant.

(q)    On 8 November 2023, the High Court made orders in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005, followed by the publication of the Court’s reasons for judgment on 28 November 2023. Ms Frzovic stated that, across November 2023, the work of the NCCC and related functions in the immigration detention network was impacted by the decision in NZYQ, and “[r]esources were diverted to concentrate on identifying relevant character cases with NZYQ profiles”.

(r)    On 9 November 2023, the Australian Criminal Intelligence Commission (ACIC) provided the results of a criminal history check in relation to the applicant.

(s)    On 29 January 2024, the Department gave the Notice to the applicant indicating that the Minister intended to cancel his visa under s 501BA (see paragraph 25 above).

143    The Thresholds Brief provided the Minister with “an overview of the current settings for referring Administrative Appeals Tribunal (AAT) set aside cases” and sought his endorsement of updated referral thresholds and their application to the “current caseload”. It was noted that a risk based approach was applied when determining which cases were referred to the Minister, allowing for the cases “to be progressed efficiently with greater ministerial focus on high risk or sensitive cases in line with community protection objectives and community expectations”. The former referral thresholds had been established by the then Minister in February 2020, under which approximately 20 per cent of cases had been determined to meet the thresholds for referral. The Thresholds Brief stated that the updated referral thresholds would “ensure that only cases that pose the highest levels of risk and are inconsistent with Australian values such that the ‘national interest’ or ‘public interest’ is invoked” would be considered by the Minister. This included cases “where there is a very serious ongoing risk to the safety of the Australian community”, having regard to objective criteria about the offending as well as “matters considered to be exceptional, including significant media interest, or victim or community issues”.

144    The Thresholds Brief stated that “AAT set aside cases” were “triaged upon referral and marked for priority threshold assessment based on any identified community protection, legal or reputational risks”. Where a case was determined to meet the thresholds for referral to the Minister, a client brief or a submission with a draft statement of reasons may be prepared. Where the case did not meet the thresholds for referral, it would be administratively finalised by the Department. In relation to processing times, the Thresholds Brief acknowledged that “[t]he current time taken to complete the above process means it is possible that a non-citizen will reside in the community for several months after their release from detention as a result of a positive AAT decision until a decision is made by the Minister personally” (emphasis added).

145    In terms of case load, the Thresholds Brief set out the “legacy referrals on-hand” as at 30 September 2022, comprising approximately 70 cases that had been assessed as meeting the current thresholds for referral or had been specifically requested by the former Minister for personal consideration, and approximately 450 further cases that required assessment by the Department. It should be noted that these numbers included both s 501A cases and s 501BA cases. The Thresholds Brief stated that all of these cases had been “robustly triaged at referral with a view to prioritising and escalating those cases likely to pose community protection, legal or reputational risk to the Department”.

146    The Department estimated that the updated referral thresholds as set out in the Thresholds Brief would result in 90 per cent of cancellation matters not meeting the threshold for referral to the Minister. Some cases that met the previous thresholds for referral would not meet the updated referral thresholds. Cases would be referred in the following circumstances:

Refer to Minister for consideration (Updated)

•    Where there is a very serious ongoing risk to the Australian community based on abhorrent violent, sexual, child sex or family violence offending which generally resulted in a substantial term of over 10 years imprisonment

•    Historic offending that is repugnant in nature to the Australian community, such as offences causing the death of a person or child sex offending where such does not equate with Australian community values bearing in mind long term residence.

•    Exceptional circumstances, including significant media interest, significant victim or community issues

•    High profile involvement in organised criminal activity or syndicates, including Outlaw Motorcycle Gangs

(Emphasis in original.)

147    Finally, the Department stated that updates would be provided to the Minister’s office “though the weekly character and cancellations meeting on the progress and outcomes of this case load for your visibility”.

148    Ms Frzovic was cross-examined by counsel for the applicant. In general, she gave her evidence in a direct and responsive manner, particularly in relation to her experience of Departmental processes, although there were some limits on her direct knowledge of the applicant’s particular case beyond what was revealed through her searches of the Department’s electronic records and her examination of the relevant files. In particular, she had not spoken to any case officers or other persons to inquire as to their recollections of the processing of the applicant’s case.

149    In relation to the impact of Direction 90 on case processing, in terms of cases being put “on hold”, Ms Frzovic accepted that this did not prevent the provision to the Minister of s 501BA “client briefs”. She clarified that she was referring to “substantive s 501 matters” that were on foot, which would be “halted” while the impact of the new direction was assessed. Thus, Ms Frzovic agreed that the applicant’s case, which was at what she described as an “infant stage” and “wasn’t an established s 501BA case at that point in time”, had not been put on hold as a result of the commencement of Direction 90 on 15 April 2021.

150    Ms Frzovic was asked how she had formed her understanding that the applicant’s case would have been progressed by referring it to the Legal Assurance Team in mid-2021: see para 142(f) above. She said that this was based on her reading of the email chain, but that she could not be “100 per cent sure because I was not there at the time”. She was unable to say with any certainty when the draft s 501BA submission was provided to the Legal Assurance Team. Her searches of Departmental records did not reveal any actions being taken in respect of the applicant’s s 501BA case between 30 June 2021 and April 2022, when the federal government entered into caretaker mode. Ms Frzovic said her understanding was that the case was with the Legal Assurance Team during this time, awaiting the outcome of CWY20 — although she would not herself have used the term “parked” which appeared in some of the contemporaneous emails, she did not disagree with that characterisation. She agreed that the applicant’s case had not at that time been “allocated” to anybody in the Legal Assurance Team.

151    In relation to the amendment of “templates” following the Full Court’s decision in CWY20, Ms Frzovic was unable to say which templates had been amended. She agreed that there was no record of the applicant’s case having been updated in the months following the Full Court’s decision in November 2021, and that the email dated 3 May 2022 was the first record of any request for an update to his s 501BA submission. Ms Frzovic was unable to say why that request had been made several days prior to the High Court’s refusal of special leave to appeal in CWY20, but speculated that the Department might have been received advance notice that the decision was being handed down by the High Court.

152    In relation to the caretaker period in April and May 2022, Ms Frzovic agreed that Ministers can continue to exercise personal non-compellable intervention powers during caretaker periods, but stated that they may have less time to do so. After the federal election, pending s 501BA cases had been “put on hold” pending instructions from the new Minister’s office. New Ministers were sworn in on 1 June 2022. Ms Frzovic confirmed that there was no record of any further action being taken on the applicant’s case until 15 June 2023, when the applicant was assessed under the updated referral thresholds.

153    Ms Frzovic could not say whether or how the commencement of Direction 99 had affected the applicant’s particular case, other than that a new Direction generally causes “templates to be updated, officers to be trained, legal clearance of various documents”. In re-examination, Ms Frzovic elaborated on the work involved in the implementation of a new Ministerial direction, including that “all of the cases that have been started need to be restarted again through the lens of the new ministerial direction”, and said that it was “quite disruptive in terms of ongoing processing of cases and it does take some time to actually, you know, crank up the machine and start processing again”.

154    Ms Frzovic was also unable to explain why it had taken two and half months to assess the applicant’s case against the updated referral thresholds after they had been endorsed by the Minister on 29 March 2023, nor why it had taken a further four months to provide the applicant’s updated assessment to the Minister on 17 October 2023. She said:

I presume it would be just volume, other cases also having to be done, resourcing and other business continuing, but you are right, I cannot say with any certainty.

155    Finally, the parties also filed a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995 (Cth), which set out facts that were agreed for the purposes of the proceeding, without conceding their relevance to the issues in the proceeding. The agreed facts concerned: the number of decisions made by the Minister personally to refuse or cancel visas during certain periods (between 22 December 2022 and 28 February 2023, and during the month of November 2023); various documents that are “not in existence”, in that such documents were not located by the Minister after reasonable searches; the making of Direction 90 on 8 March 2021, with a commencement date of 15 April 2021; and the relevant dates on which decisions were handed down in the CWY20 litigation.

156    Accordingly, it is agreed between the parties that the Minister did not make any decisions in the exercise of his personal powers to refuse or cancel visas during the period between 11 April 2022 and 11 May 2022 (which covered most of the caretaker period in relation to the 2022 federal election), and that the Minister made only one such decision during the period between 22 December 2022 and 28 February 2023 (which was the period following the delivery of judgment by the Full Court in Pearson). In relation to the latter period, the sole Ministerial decision in the exercise of the personal powers was a decision under s 501(3) to cancel a visa held by a person who had been the subject of an adverse security assessment. During November 2023, the Minister made four cancellation decisions under s 501(3), all of which were made on either 9 or 10 November 2023 (noting that the High Court made orders in NZYQ on 8 November 2023).

Findings on the evidence

157    Having regard to the evidence set out above, the following findings can be made about the progress of the applicant’s case from the time of the Tribunal’s decision on 13 April 2021 to the date on which the Minister purported to exercise the power under s 501BA to set aside that decision and cancel the applicant’s visa almost 38 months later on 8 June 2024.

158    On 30 April 2021, within a matter of weeks after the Tribunal’s decision, the Department had briefed the Minister’s office on the possible exercise of the power under s 501BA in relation to the applicant, seeking to ascertain whether the Minister wished to consider setting aside the Tribunal’s decision and cancelling the applicant’s visa. A draft Ministerial submission was already in existence at around that time. The commencement of Direction 90 on 15 April 2021 does not appear to have had any material impact on the preparation of the draft submission. The applicant was not provided with a copy of Direction 90 nor invited to provide any response to that direction.

159    By late June 2021, the draft submission was sufficiently complete to have an index of attachments and a draft statement of reasons for decision. The draft submission was “ready to move on” at that time, with some changes to the attachments, and subject to being sent to the Legal Assurance Team for review.

160    I infer that the draft submission was referred to the Legal Assurance Team at some time after 30 June 2021. There is no evidence of anything further being done to progress the applicant’s case until May 2022. On balance, I find that this period of inaction was likely to have been the result of the draft submission being “parked” or put on hold pending the outcome of an appeal by the Minister from the decision of Griffiths J in CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62, which had been handed down on 20 December 2020. In that case, the Court set aside a decision made by the Minister s 501A(2) on the basis that the Minister had failed to have regard to the breach by Australia of its international non-refoulement obligations when assessing the national interest. The Minister’s appeal was heard before the Full Court on 3 June 2021, and was dismissed on 9 November 2021. An application for special leave to appeal was dismissed by the High Court on 5 May 2022.

161    On 3 May 2022, shortly prior to the refusal of special leave to appeal in CWY20, the applicant’s case was referred by the Legal Assurance Team back to the NCCC to be “reworked”, including by checking whether there was any new or updated information. At that time, it appeared to be contemplated that the matter would “proceed to submission” if there was no new information, although any such submission would need to be put into an “updated template”. It may be noted that it does not appear that any further information was obtained in relation to the applicant’s case at this time. The Department did not obtain a National Criminal History Check in relation to the applicant until 9 November 2023 (more than 15 months later).

162    The federal election was held on Saturday, 21 May 2022, resulting in the election of the Albanese Labor Government. While the previous government had been in caretaker mode since the writs for the election were issued on 11 April 2022, the evidence does not suggest that this had any material impact on the progression of the draft s 501BA submission in relation to the applicant, and I find accordingly. No draft s 501BA submission had been provided to the Minister’s office prior to 11 April 2022, and there is nothing to indicate that the preparation or advancement of a draft submission was held up in any way by the observance of caretaker conventions. After the election result, however, the Legal Assurance Team suggested to the NCCC case officer that the applicant’s case be put “on hold” pending instructions from the new Minister’s Office.

163    The new Minister was sworn in on 1 June 2022. Notwithstanding Ms Frzovic’s evidence about the impact of a change in Government or a change in the Minister on the Departmental processes relating to the Minister’s personal powers under the Migration Act, there is no direct evidence that this delayed the progression of the applicant’s case or the draft s 501BA submission in relation to the applicant. In fact, there is no evidence of any action being taken within the Department or the Minister’s Office in relation to the applicant until June 2023, approximately one year after the new Minister was sworn in.

164    For some part of this period, it appears that the resources of the Department, including in particular the NCCC, were impacted by the Full Court’s decision in Pearson. The response to that decision caused some disruption to the work of the NCCC from late-December 2022 until mid-February 2023.

165    At around this time, the priorities of the NCCC within the Department were affected by the making of Direction 99. Assuming that the applicant’s draft s 501BA submission was regarded as unable to be finalised before Direction 99 came into effect on 3 March 2023, it was again put “on hold” until after that date. Ms Frzovic’s evidence is that the commencement of the new Ministerial direction would have required the development and clearance of new guidance and templates, and the provision of the new direction to persons with outstanding matters. However, I note that the applicant was not provided with a copy of Direction 99 until 29 January 2024, when he was given the Notice indicating the Minister’s intention to cancel his visa under s 501BA.

166    In mid-June 2023, the applicant’s case was assessed against the updated referral thresholds that had been endorsed by the Minister on 29 March 2023. This appears to have been the first concrete action that was taken on the applicant’s case since 23 May 2022, if one can even describe what had taken place in May 2022 as involving any “action” to progress the matter.

167    The outcome of that assessment was not briefed to the Minister until 17 October 2023, resulting in the Minister’s Office requesting a s 501BA submission in relation to the applicant on 31 October 2023. This appears to have prompted the Department to obtain a National Criminal History Check for the applicant on 9 November 2023. The applicant was then sent the Notice on 29 January 2024.

168    The Ministerial submission was cleared by the Assistant Secretary of the Character and Cancellation Branch on 2 June 2024, marked with “Timing – At your earliest convenience”. The Minister signed the submission and the accompanying decision record at 4.04 pm on 8 June 2024, indicating that the total time taken in considering the submission and attachments was three hours and 30 minutes.

Was the Minister’s decision made within a reasonable time?

169    The question whether the Minister has exercised the power under s 501BA(2) within a reasonable time after the original decision involves an objective assessment having regard to the facts and circumstances of the particular case. Past authorities in the context of unreasonable delay in the performance of a statutory duty may be capable of providing some guidance: see e.g. Thornton v Repatriation Commission (1981) 35 ALR 485 at 490 (Fisher J); BMF16 at [25]–[26] (Bromberg J); ASP15 v Commonwealth (2016) 248 FCR 372 at [21]–[23] (Robertson, Griffiths and Bromwich JJ); Patrick v Australian Information Commissioner (2024) 304 FCR 1 at [37]–[46] (Bromwich, Abraham and McEvoy JJ); Northern Disability at [111]–[115] (Horan J). Nevertheless, in the present context, it should be kept in mind that the implied temporal limitation is based on the purpose for which the power under s 501BA is conferred and must be exercised, and the necessary connection between an exercise of power under s 501BA and the original decision to which the power is directed. The threshold is not necessarily couched in terms of whether or not the delay is “in consequence of neglect, oversight or perversity”: cf. Thornton at 492 (Fisher J); Northern Disability at [113] (Horan J).

170    It can be accepted that the applicant bears the onus of establishing jurisdictional error or reviewable legal error on judicial review. There may nevertheless be circumstances in which delay in exercising the power under s 501BA is prima facie unreasonable in the absence of a satisfactory explanation. In such cases, the respondent may have a “persuasive” onus to provide a reasonable explanation, particularly in so far as the applicant is not responsible for the delay and the explanation involves matters that are within the capacity of the respondent to adduce evidence: BMF16 at [27]–[28] (Bromberg J); AQM18 at [59] (Besanko and Thawley JJ). It is in this sense that a delay in exercising the power may “call for explanation” by the respondent. However, that does not mean that the respondent will meet such a practical onus simply by putting on evidence to identify what was happening (or not happening) at relevant times during the period in question. The question remains whether the facts and circumstances establish that the power has been exercised within a reasonable time, and for the purpose of responding to or addressing the original decision.

171    In the present case, both parties submitted that the relevant inquiry was whether the period as a whole was within a reasonable time, rather than disaggregating that period by breaking it down into separate components: cf. KDSP at [107] (Bromberg J), [179] (O’Callaghan and Steward JJ). It might be surmised that each party adopted that position for differing reasons: the applicant because he did not want to be defeated on the basis that the Minister was able to provide some evidence of what was happening during each successive time period, but without adequately justifying the cumulative delay; the Minister because he did not want to fail on the basis that there were one or more periods of time which could not be satisfactorily explained by the evidence. Nevertheless, I accept that the ultimate question is whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister. The events occurring within that period can be relevant to demarcate different bases on which the time taken to exercise the power can be explained or justified. Thus, it may remain necessary to give “due weight to the varying reasons for delay that were applicable to various periods”: KDSP at [193] (O’Callaghan and Steward JJ). But the ultimate question in the present context is not so much whether there has been an unreasonable delay during one or more periods, but whether the Minister has failed to exercise the power under s 501BA(2) within a reasonable time, so as to deny the connection to the original decision that is required by the purpose of the power.

172    The relevant period is not confined to the time taken by the Minister personally to consider the exercise of the power, but encompasses the entire period after the Minister has actual or constructive notice of the Tribunal’s decision. It is therefore necessary to examine the Departmental processes and the actions taken within the Department in response to the Tribunal’s decision. The question is not merely whether there has been unreasonable delay on the part of the Minister personally.

173    In that regard, I do not accept the Minister’s submission that there can be no delay until the power under s 501BA(2) is enlivened by the formation of the requisite state of satisfaction under s 501BA(2)(a) and (b), namely that the person does not pass the character test and that the cancellation of the visa is in the national interest. In my view, any relevant delay must be assessed from the time at which s 501BA applies, that is, when a delegate or the Tribunal makes the original decision under s 501CA to revoke a mandatory cancellation decision under s 501(3A). It is at that time that the Minister’s power arises under s 501BA(2), subject to the Minister being satisfied of the pre-conditions to the exercise of the discretion to set aside the original decision and cancel the visa. Rarely, if ever, will there be any material delay between the formation by the Minister of the state of satisfaction under s 501BA(2)(a) and (b) and his or her consideration of the discretion to exercise the power conferred by s 501BA(2). However, the power will no longer be available if it has not been exercised within a reasonable time after the original decision was made, regardless of when the Minister was satisfied of the conditions to the exercise of the power under s 501BA(2)(a) and (b).

174    Of course, in determining what is a reasonable time for power under s 501BA(2) to be exercised, it is important that sufficient time is allowed to enable a proper consideration of the significant issues raised by the potential exercise of the power to set aside the original decision and cancel a visa that has been granted to a person: cf. KDSP at [186] (O’Callaghan and Steward JJ); Morgan at [83] (McDonald J). This includes the steps necessary for the Department to collect information, to apply any relevant referral thresholds, to ascertain whether the Minister wishes to consider the exercise of the power, and to prepare a detailed submission to the Minister. In those cases where the Minister chooses to afford natural justice to the person, the time required to provide the person with an opportunity to respond will be relevant in determining whether any decision has been made within a reasonable time.

175    On the other hand, it is also relevant to take into account the impact of a decision under s 501BA(2) on the rights and interests of the person whose visa is cancelled, including its potential impact on the person’s liberty, having obtained a decision from a delegate or the Tribunal under s 501CA to reinstate a visa that had been cancelled under s 501(3A).

176    The volume of cases and the resources available to the Department may be relevant, but is not determinative: cf. Northern Disability at [124]–[125] (Horan J). Similarly, it may be relevant, but not determinative, to have regard to any competing priorities and their associated demands on the Department and the Minister respectively. It should be kept in mind, however, that the “cohort” of s 501BA cases (whether themselves or together with s 501A cases) would often be expected to raise exceptional and pressing circumstances, which should usually attract a relatively high priority. This is reflected in some of the extrinsic material accompanying the 2014 amendments that introduced s 501BA. In this regard, there was a tendency in the evidence of Ms Frzovic to treat the impact of various events on the Department’s workload in an undifferentiated manner, across the entire spectrum of character cancellation and refusal decisions. However, the potential exercise by the Minister personally of the power in s 501BA(2) to set aside an original decision should not be subsumed or submerged in the overall business of the Character and Cancellation Branch or the Department generally, in an attempt to justify prolonged delay by reference to a “backlog” of cases or the need to update general Departmental guidelines and templates.

177    In any event, the Minister only relied on the most general evidence in relation to the available resources of the Department, and did not adduce any specific evidence about the prioritisation of s 501BA cases in relation to other matters within the workload of the NCCC, including the exercise of the Minister’s personal powers. The Minister ultimately did not advance a case that the delay in exercising the power under s 501BA in relation to the applicant was caused primarily by resource constraints or by other competing priorities. Rather, the long periods of delay and inactivity were principally explained by reference to the finalisation of appeal processes in the CWY20 litigation and, to a lesser extent, the impacts of a change in government and Minister, a new Ministerial direction, and the endorsement of updated referral thresholds.

178    In my view, the Minister failed to exercise the power under s 501BA within a reasonable time. The Department had prepared a draft s 501BA submission with a complete draft statement of reasons for decision by 30 June 2021, within three months after the Tribunal’s decision. There is no good reason why the matter could not have been progressed for consideration by the Minister at or around that time, based on the prevailing law and by reference to the extant referral thresholds and current Ministerial directions.

179    The draft s 501BA submission was referred to the Legal Assurance Team in around July 2021, where it was then “parked” for the next 10 months before being returned to the NCCC case officer. There is no evidence that any action was taken by the Department to progress the submission during that 10-month period. The Minister sought to justify this period of inactivity by reference to the pending appeal in CWY20. The decision at first instance in CWY20 had been handed down in December 2020, prior to the Tribunal’s decision in the present case. In broad terms, the question raised on the appeal in CWY20 concerned whether and how the Minister should take into account international non-refoulement obligations when addressing the “national interest” under s 501A(2) or (3). While this issue had possible implications for the application of s 501BA(2)(b), particularly in circumstances where it was accepted that the applicant’s removal to Somalia was likely to engage Australia’s international non-refoulement obligations, it is not apparent why the draft s 501BA submission could not be progressed in accordance with the first-instance decision in CWY20, unless and until that decision were to be overturned on appeal. Moreover, even after the Full Court had dismissed the Minister’s appeal on 9 November 2021, no action was taken within the Legal Assurance Team to progress the draft submission in accordance with the Full Court’s decision. Although the Minister had made an application to the High Court seeking special leave to appeal, this is not a case in which the Minister’s power under s 501BA was contingent on the outcome of that application.

180    At some point, the Minister must exercise his statutory powers and administer the Migration Act in accordance with the prevailing law, rather than await possible legal developments arising from pending or future litigation, including in particular an application for special leave to appeal. In particular, the status of the Full Court’s decision in CWY20 as “good law” ought not to have been treated as contingent on the refusal of special leave to appeal by the High Court, as seems to have been implicit in the email from the Assistant Director of the Legal Assurance Team.

181    The matter may be tested by a hypothetical case, in which the power under s 501BA is attracted in respect of a person whose release is regarded by the Minister as posing a significant risk to the community. In such circumstances, it defies credulity to think that the Minister would defer any consideration of the exercise of power under s 501BA(2) in order to wait for the clarification of legal issues raised in pending litigation in a different matter. Indeed, such an approach would be difficult to reconcile with the purpose of the power and the national interest it is intended to protect.

182    Nor do I consider that the outcome of the federal election in May 2022, including the change in Minister, provides a reasonable explanation for the ongoing delay in the exercise of power under s 501BA(2) in relation to the applicant. As I have found above, the evidence does not indicate that the caretaker period had any specific impact on the progression of the applicant’s case. While a change in Minister is clearly relevant, it does not explain the delay of approximately one year before a s 501BA submission was provided to the Minister in relation to the applicant.

183    The commencement of a new Ministerial direction is also capable of having an impact on the progression of cases under s 501BA. However, I am sceptical of the bald assertion that all cases must be placed on hold until the new Ministerial direction can be assessed and “templates” are updated and cleared, let alone that all such cases must be “restarted”. This is particularly so in relation to the exercise of the Minister’s personal powers such as s 501BA, where the Minister is not strictly bound by the direction and where (as in the present case) the person is not given an opportunity to respond or to make submissions by reference to the new direction. Further, and in any event, Direction 99 was made on 23 January 2023 and commenced operation on 3 March 2023, which was already almost two years after the Tribunal’s decision in relation to the applicant. There was no indication in the evidence as to how the changes to the Ministerial direction affected the applicant’s case. And it still took more than a year before the Minister was eventually provided with a s 501BA submission in relation to the applicant in June 2024.

184    In so far as the Minister sought to rely on generalised disruption and diversion of resources resulting from judicial decisions in cases such as Pearson and NZYQ, I consider that the impacts of those decisions is far too generalised and does not adequately explain nor justify the lengthy delays in the progression or consideration of the possible exercise of power under s 501BA(2) in relation to the applicant.

185    Accordingly, I find that the Minister did not exercise the power under s 501BA(2) within a reasonable time after the Tribunal’s decision, and that the power was therefore no longer available to be exercised. The 38-month period between the Tribunal’s decision and the purported exercise of the power under s 501BA(2) was characterised by long periods of inactivity for which there was no reasonable explanation or justification. The Minister’s decision was ultimately made by reference to events which had occurred long after the Tribunal’s decision, and long after a draft s 501BA submission with a draft statement of reasons for decision had first been prepared by the Department. In effect, the Minister’s decision was no longer addressing the outcome of the Tribunal’s decision, or the state of affairs obtaining as a result of that decision.

186    In reaching this conclusion, I have had regard to previous decisions of this Court in which it has been found that there was no unreasonable delay by the Minister in exercising the power under s 501BA(2). The question whether there is unreasonable delay or failure to exercise power within a reasonable time is a question of fact, or mixed fact and law. As such, the findings made in those other cases do not establish any general rule or principle, nor any minimum period that is to be treated as a reasonable time for the exercise of power under s 501BA(2): cf. Horizon Solsolutions Australia Pty Ltd v National Disability Insurance Agency [2025] FCA 511 at [80] (Wheelahan J), referring to Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J) and Bus v Sydney County Council (1989) 167 CLR 78 at 89 (Mason CJ, Deane, Dawson and Toohey JJ). Each case must turn on its particular facts, and on the evidence adduced by the parties.

187    Thus, in Morgan (at [85]), McDonald J was conscious of the risk “that the actual length of the delay in this case might have an anchoring effect”. In that case, a period of nine months for the Department to provide the Minister with a submission and draft reasons was regarded by his Honour (at [82]) as “not outside the scope of ordinary experience”, albeit “longer than might generally be regarded as desirable”, although this was in circumstances where there was no evidence before the Court about the Departmental processes leading to the decision and the challenge was based on the “bare fact” of the length of the period between the original decision and the Minister’s decision (at [77]–[80], [84]–[85]).

188    The decisions in cases such as KDSP and AQM18 can be distinguished on the additional basis that they addressed a failure to exercise the power conferred by s 501A to set aside an original decision by the Tribunal and refuse to grant a visa to the appellant, as opposed to the power conferred by s 501BA(2). Further, the facts of each those cases do not provide any comfort to the Minister in the present case.

189    In KDSP, there had been ongoing processes to provide natural justice to the appellant: see at [168]. In the overall period of 18 months between the Tribunal’s decision and the exercise of power under s 501A, O’Callaghan and Steward JJ identified (at [192]) “five key objective events” that had led to the delay (including the delivery of a judicial decision that required consideration, the appointment of a new Minister, the return of submissions to the Department, the implementation of a new regime in accordance with the new Minister’s requirements, and the publication of a new Ministerial direction). However, their Honours noted that the delay between each of the “key events” in the chronology “usually amounted to about a month, or perhaps on occasion, two months”, and the biggest delay was a period of three and a half months for the clearance of the draft Ministerial submission: at [193].

190    In AQM18, the relevant period between the Tribunal’s decision and the Minister’s exercise of power under s 501A was approximately one year, part of which was explained by the provision to the appellant of an opportunity to provide submissions and to respond to a judicial decision that was accepted to be relevant to the Minister’s consideration whether to refuse to grant a visa to the appellant: AQM18 at [36]–[55].

191    In the present case, more than three years elapsed before the Minister purported to exercise his non-compellable personal power under s 501BA(2) to override the Tribunal’s decision and cancel the applicant’s visa. There were lengthy periods of inactivity or delay that are not satisfactorily explained by the evidence. The inexorable finding is that a reasonable time for the exercise of the power under s 501BA(2) in relation to the applicant had expired well before Minister’s decision on 8 June 2024. The Minister’s decision was therefore beyond power and invalid.

192    Accordingly, Ground 2 is upheld.

Ground 3: Was the Minister’s decision affected by apprehended bias?

193    The applicant alleges that there is a reasonable apprehension of bias arising from the possession by the Minister of information that the applicant was facing two pending charges of rape. The fact of those charges was disclosed in the National Criminal History Check dated 9 November 2023, which was obtained from ACIC and included as an attachment to the Departmental submission provided to the Minister in June 2024.

194    The National Criminal History Check contained a number of introductory paragraphs setting out “limitations on accuracy and use” of the information contained in the report. The document contained information held by Australian police agencies on what were described as “Disclosable Court Outcomes”, which were defined to include (among other things) charges and pending matters awaiting court hearing. The report stated that, where there was a disclosable court outcome, the entity submitting the application for the criminal history check was required to provide the applicant with a reasonable opportunity to respond to or validate the information.

195    The relevant entry in the National Criminal History Check relating to the applicant recorded that he had pending charges as at 30 April 2023 of “Commit Indictable Offence Whilst on Bail (2 Charges)” and “Rape (2 Charges)”. In respect of those pending charges, the document expressly stated:

At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.

196    The Departmental submission provided to the Minister included the National Criminal History Check as an attachment, along with a range of other material from the proceedings before the Tribunal. However, while the Minister’s statement of reasons for decision referred to and took into account the applicant’s conviction of other offences in June 2023, it did not contain any reference to the pending charges against the applicant.

197    Nevertheless, the applicant submits that the information that the applicant was facing charges of alleged rape was extraneous and highly prejudicial material, particularly given the emphasis in the Minister’s reasons on sexual offending. In those circumstances, the applicant submits that a fair-minded lay observer might reasonably apprehend that the Minister might not have brought an impartial mind to the questions he was required to determine, namely whether the cancellation of the applicant’s visa was in the national interest and whether to exercise the discretion to set aside the Tribunal’s decision and cancel the visa. The applicant contends that such a conclusion arises from the Minister’s failure in his reasons to deal with and expressly disavow any reliance on the extraneous and prejudicial information.

198    The Minister accepts that the pending charges were irrelevant to the issues to be determined in exercising the power under s 501BA(2), but contends that there is nothing in the Minister’s reasons to suggest that this information was treated as relevant. Significantly, the Minister was informed that the charges were undetermined and could not be regarded as a finding of guilt against the applicant. Further, the Minister notes that the applicant’s representatives had themselves referred to the pending charges in the course of correspondence with the Department, submitting that those charges were yet to be judicially determined and that, in order to accord procedural fairness to the applicant, the Minister should refrain from exercising power under s 501BA(2) “until such time as the pending matters are finalised”.

199    In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, a majority of the High Court set aside a decision made by the Immigration Assessment Authority on the ground that a reasonable apprehension of bias had arisen from the provision by the Secretary of the Department of Immigration and Border Protection to the Authority of irrelevant and prejudicial material about various offences of which the applicant had been either convicted or charged. The material included descriptions of the alleged conduct. The prejudicial nature of the material arose from the fact that it was capable of giving rise to an inference that the applicant was a person of bad character, a danger to the community, or unworthy of being granted permission to remain in Australia, in circumstances where the applicant’s character was not a substantive issue for determination by the Authority and the information had no legal relevance to an assessment of the applicant’s credibility. In circumstances where the material had been considered by the Secretary to be relevant to the review, where the Authority was under a statutory duty to have regard to that material, and where the applicant was not aware of the content of the information provided to the Authority, Nettle, Gordon and Edelman JJ held that a hypothetical fair-minded lay observer might reasonably have apprehended that the Authority might not have brought an impartial mind to the resolution of the review by reason of its possession of the irrelevant and prejudicial material.

200    The facts of the present case can be distinguished from CNY17. First, the information in the National Criminal History Check was no more than a factual statement that there were pending charges against the applicant, without any reference to the underlying factual allegations, and with an express disclaimer that the charges had not been judicially determined and could not be regarded as a finding of guilt. Secondly, unlike in CNY17, the applicant’s character was squarely encompassed in the issues for determination by the Minister, so that it might be doubted that the information was extraneous or irrelevant in the same manner as that considered in CNY17. Thirdly, the Minister was not required to have regard to the information relating to the pending charges, and there is nothing in his statement of reasons to suggest that he did so. Fourthly, the applicant was made aware of the information relating to the pending charges and the fact that such information was before the Minister. In fact, his legal representatives had made limited submissions addressing the fact of the pending charges and their impact on the timing of the Minister’s decision: cf. AAL19 v Minister for Home Affairs (2020) 277 FCR 393 at [99]–[101] (Logan, Markovic and Anastassiou JJ).

201    The applicant contends that the information gave rise to a risk that the Minister might have been subconsciously influenced to the applicant’s detriment by the information about the pending charges, and that this risk was not dispelled by the “deafening silence” in the Minster’s reasons as to whether he had put that information aside as irrelevant to his decision: cf. CNY17 at [141] (Edelman J). In my view, however, the mere fact that the Minister did not expressly refer to the pending charges does not give rise to an inference that he might have been influenced by the information about those pending charges not to decide the case on its merits.

202    The decision in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 can be distinguished for similar reasons. That case also arose in the context of the provision of irrelevant and prejudicial information to the Authority under the “fast track” review process contained in former Pt 7AA of the Migration Act. The information related to criminal charges that had been brought against the appellant for persistent sexual abuse of a child, and included a “fact sheet” setting out details of the allegations giving rise to the charges. The Full Court held that there was a reasonable apprehension of bias, notwithstanding that the Authority had stated in its reasons that it had disregarded the information as irrelevant. The Court relevantly concluded that the information was “of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa”, and that a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information”: FSG17 at [42] (Bromberg, Davies and O’Bryan JJ).

203    However, quite apart from the differences in the nature and detail of the prejudicial information from that involved in the present case, the outcome in FSG17 cannot be divorced from the statutory context of the “fast track” process under Pt 7AA or from the fact that the appellant had not been made aware of the information or given an opportunity to respond to it. As Bromberg, Davies and O’Bryan JJ concluded at [44]:

In the context of a review under Pt 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case.

204    I note also that in the earlier decision of Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, Dowsett J (at [3]–[4]) considered that no reasonable apprehension of bias arose merely because the Authority was aware that the respondent in that case had been charged with a serious offence, but for the fact that the prejudicial information had been communicated to the Authority as material that was considered by the Secretary to be relevant to the review (see also at [78] (Griffiths J)).

205    The applicant also relied on evidence of two documents which were said to establish that the Department was actively monitoring the progress of the criminal proceedings arising from the pending charges in around March or April 2024. The first document was a “Client Brief” (MB24-000298) dated 15 March 2024 and updated on 16 April 2024. The second document was an “Escalation Brief” (EC24-001116) with a “due date” of 11 March 2024. There was no evidence that either of these documents was provided to the Minister in connection with the s 501BA decision. It may be accepted that the Department was aware of the pending criminal charges and was monitoring their progress, including the possibility that any further conviction might provide a basis for a future mandatory cancellation decision under s 501(3A) of the Migration Act. However, nothing in these documents has any bearing upon whether there is a reasonable apprehension of bias in relation to the exercise by the Minister of the power conferred by s 501BA(2).

206    The question whether there is a reasonable apprehension of bias ultimately turns on the facts and circumstances of the particular case. It is necessary to identify the particular matter that might lead the decision-maker to decide the case other than on its legal and factual merits, to articulate the logical connection between that matter and the apprehended deviation from deciding the case on its merits, and assessment the reasonableness of the apprehension from the perspective of a fair-minded lay observer: see CNY17 at [57] (Nettle and Gordon JJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [162] (Edelman J), [194] (Steward J), [225] (Gleeson J), [293] (Jagot J); Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 at [35]–[37] (Bromberg, Murphy and Markovic JJ).

207    In the present case, the factor relied upon by the applicant is the possession by the Minister of the information about the pending rape charges against the applicant. The asserted logical connection between that factor and the apprehended deviation from deciding the case impartially is that the Minister might have been improperly influenced by that information to form an adverse view of the applicant either in relation to whether the cancellation of his visa was in the national interest or whether the discretion under s 501BA(2) should be exercised to cancel his visa. I am not necessarily convinced that such reliance on the information would have been entirely irrelevant in circumstances where the applicant’s character was itself in issue in the exercise of the power under s 501BA(2), but I will proceed on the basis that the information was both irrelevant and prejudicial to the applicant.

208    Having regard to all of the circumstances, I do not consider that the Minister’s possession of the information about the pending charges was itself such as might give rise to a reasonable apprehension by a fair-minded and informed lay observer that the Minister might decide the case otherwise than on its legal and factual merits, in circumstances where there is nothing to indicate that the Minister had regard to or placed any reliance on that information, and the applicant was made aware of the information and had entered into correspondence with the Department about the fact of the pending charges.

209    Accordingly, Ground 3 is dismissed.

CONCLUSION

210    For the reasons set out above, I have upheld Ground 2 of the further amended originating application. Accordingly, the Minister’s decision dated 8 June 2024 was beyond jurisdiction and should be set aside. The Minister should pay the applicant’s costs.

Associate:

Dated:    27 May 2025