Federal Court of Australia

BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s name be anonymised and replaced with the pseudonym BTLD.

2.    The application otherwise be dismissed.

3.    The applicant pay the first respondent’s costs, to be taxed or agreed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    In this application, the applicant seeks judicial review of a decision of the Assistant Minister of Immigration and Multicultural Affairs made pursuant to s 501BA of the Migration Act 1958 (Cth), to set aside a decision of the Administrative Appeals Tribunal, as it was then called, revoking a decision of a delegate of the Minister to cancel the applicant’s visa.

2    On 26 November 2021, the visa held by the applicant was the subject of mandatory cancellation by a delegate of the Minister pursuant to s 501(3A) of the Migration Act. The applicant applied for revocation of that decision and made representations in support of that application. On 28 February 2024, another delegate of the Minister declined to revoke the cancellation. The applicant then applied to the Tribunal to review that decision and on 23 May 2024 the Tribunal concluded the revocation should be cancelled, thereby enabling him to retain the visa.

3    The Minister, on 9 September 2024, then exercised a power that he possesses under s 501BA of the Migration Act to overturn the decision of the Tribunal.

4    Section 501BA (as it was at the time of cancellation) provides:

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.

5    In his further amended originating application, the applicant advances three grounds of review (particulars omitted):

1.    Error of law – the Minister failed to properly consider the legal consequence of the cancellation.

2.    The Minister failed to give proper, genuine and realistic consideration to the best interests of the Applicant’s child.

3.    The Minister’s finding is based upon no evidence.

6    The applicant was represented in the application by Spiritus Law Group, solicitors. The Minister was represented by Mr B Kaplan of counsel. Both filed written submissions in advance of the hearing.

2.    BACKGROUND

7    The factual background to the application may be briefly stated and is not controversial.

8    The applicant is a citizen of Nigeria who arrived in Australia on 2 November 2015 at the age of 29 as the holder of a Student (Class TU) (Subclass 572) visa. He left Australia briefly in 2017 and upon his return was granted a Bridging A (Class WA) (Subclass 010) visa.

9    On 8 November 2021, he was convicted by a judge of the District Court of New South Wales with “deal with property proceeds of crime” of a value of less than $100,000 and “recklessly deal with proceeds of crime” greater than $5,000. He was sentenced to an aggregate term of imprisonment of 3 years and 6 months.

10    The applicant does not dispute that he does not pass the character test by virtue of his sentence. The sole question before the delegate and the Tribunal was whether there was another reason why the visa revocation should be cancelled under s 501CA(4)(b)(ii) of the Migration Act. The delegate and the Tribunal reached different conclusions on that subject, with the Tribunal concluding that the decision of the delegate must be set aside and the mandatory cancellation of the visa revoked.

11    Section 501BA of the Migration Act provides that the Minister may set aside a decision of the Tribunal and cancel a visa that has been granted, if satisfied that the person does not pass the character test and “the Minister is satisfied that the cancellation is in the national interest”.

12    In his decision, the Minister took into account a number of matters when considering the national interest, most particularly being protection of the community. In this regard he adverted to the seriousness of the criminal conduct, which he characterised as “very serious”; ([18] – [26]). Secondly, he examined the risk to the Australian community. In this regard, he considered the factors contributing to the past conduct of the applicant, including his: childhood and adolescence; financial pressures; peer pressure and low self-esteem; medical issues including mental health issues and remorse and rehabilitation; ([27] – [58]). Thirdly, he evaluated the expectations of the Australian community; ([59] – [62]).

13    The Minister noted that in deciding whether he was satisfied that it was in the national interest to cancel the visa, he was required to make an evaluative judgment. He concluded:

64.    In the specific case of [the applicant], I have I have [sic] considered the nature and seriousness of his proceeds of crime offending and have concluded that it is very serious. I have also considered the psychological and financial harm which would result if [the applicant] were to reoffend. I have also considered the likelihood of [the applicant] reoffending and have found he is [sic] a low but not negligible risk of reoffending, noting the absence of any treatment to the criminogenic factors which underpinned his offending. I have also considered the expectations of the Australian community.

65.    Having regard to all of the above, I conclude that the use of my discretionary power to cancel [the applicant]’s visa is in the national interest.

14    The Minister then reviewed the following matters in deciding whether to exercise his discretion not to set aside the decision of the Tribunal and to cancel the visa. He specifically addressed the best interests of minor children, noting that the applicant has one child, born on 25 April 2018 ([68] – [75]) and also the applicant’s ties to Australia ([76] – [81]). He concluded that on balance, these matters “weigh moderately against visa cancellation” ([82]).

15    The Minister then considered the applicant’s claims that he would suffer harm if he returned to Nigeria. Ground 1 of the application to review concerns this aspect of the Minister’s reasons, which are as follows:

83.    I have considered [the applicant]’s claims that he would face harm if returned to Nigeria because Attachment E:

-    First, he was forced to depart Nigeria following threats from “criminal groups, including expelled cult members” who believe he provided information to “the authorities”. [The applicant] fears severe harm from those criminal groups due to retaliation.

-    Second, he faces potential prosecution under Nigerian law as a returning financial offender by the Economic and Finances Crimes Commission, law enforcement agency in Nigeria specialising in the investigation of financial crimes such as advance fee fraud and money laundering.

84.    I accept that the nature of the claims outlined above indicates a potential for Australia’s international non-refoulement obligations to be engaged in relation to [the applicant].

85.    It is open to [the applicant] to make an application for a Protection visa. During the processing of any such application, [the applicant]’s claims regarding Australia’s non-refoulement obligations would be fully assessed.

86.    I am aware that under s198 unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention under s189 provided that removal is practicable in the reasonably foreseeable future, noting also that s197C(1) provides that, for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.

87.    However, s197C(3) provides that s198 does not require or authorise removal of a person to a country in relation to which a ‘protection finding’ has been made in the course of considering a protection visa application by the person, except in the circumstances set out in s197C(3)(c).

88.    A ‘protection finding’ as defined for the purpose of s197C(3) of the Act, made in the course of considering a protection visa application from a non-citizen, means that Australia will not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The Act, in particular the concept of ‘protection obligations,’ reflects Australia’s interpretation of its non-refoulement obligations and the scope of such obligations that Australia is committed to implementing.

89.    If relevant circumstances change, a reassessment of a protection finding can be made under s197D. A decision that the person was no longer a person in respect of whom a protection finding [sic] would mean that the person no longer engaged Australia’s non-refoulement obligations and that s197C(3) no longer operated in respect of the person.

90.    I have also considered [the applicant]’s submission that the cancellation of his visa would separate him from his family and, as a result, constitute a breach of international law – being, article 23 of the International Covenant on Civil and Political Rights (ICCPR) Attachment T.

16    In rejecting the point summarised in [90], the Minister noted that unenacted international obligations are not a mandatory relevant consideration for the exercise of discretionary decision making powers conferred by statute, citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [20] (Kiefel CJ, Keane, Gordon and Steward JJ), and accordingly he did not consider this further. After then considering whether there are other impediments facing the applicant upon his return to Nigeria (at [92] – [100]), the Minister decided to exercise his discretion and set aside the decision of the Tribunal and cancel the visa under s 501BA.

3.    THE APPLICATION TO REVIEW

3.1    Ground 1 – Consideration of the consequences of the Minister’s decision

17    In the particulars to ground 1, the applicant contends that the Minister failed properly to consider the legal consequence of his decision which is that the applicant may be detained indefinitely during the processing of a protection visa application or any removal proceedings, citing the decision of the High Court in NZYQ v Minister for Home Affairs [2023] HCA 37; 97 ALJR 1005 at [55] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).

18    The applicant submits that the Minister was required by law to proceed with a correct understanding of the obligation of non-refoulement and that, in particular, he would likely lodge a protection visa application whilst detained. He submits that the Minister ought to have also known that, because of Australia’s non-refoulement obligations, there are low prospects that the applicant would be removed from Australia in a reasonably foreseeable period of time with the consequence that exercising his powers to revoke the visa will lead to indefinite detention, citing AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 at [34] (Murphy, Stewart and McEvoy JJ).

19    In my view this ground is not established.

20    As the Minister acknowledged in his decision, the question of what is in the national interest within s 501BA(2)(b) of the Migration Act is largely a political decision. Section 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest or in exercising the discretion under s 501BA(2); Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ).

21    The Minister is, however, under a duty to have regard to the legal consequences of his decision in exercising the discretion under s 501BA, although that exercise is limited to consideration of the direct, rather than indirect consequences of the decision.

22    As the Full Court of the Federal Court said in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ), citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ):

84.    The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. There is no difference in this regard between an exercise of power under s 501(1) of the Migration Act and an exercise of power under s 501(2) or s 501(3): see also AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681 at [11], in which White J applied NBMZ to s 501(2). Furthermore, at a functional level, the human consequences of a decision under each of these three provisions may be equally grave. The difference between them is that the possibility that the Minister may act without regard to a decision’s human implications is more likely under s 501(3) than under s 501(1) and 501(2), because of the absence of a procedural fairness requirement with respect to decisions under s 501(3) (see s 501(5)), with the result that the Minister may lawfully make a decision under s 501(3) without the benefit of any information the visa holder might contribute. It follows that, in making a decision under s 501(3), the Minister is obliged to take into account the direct and immediate statutory consequences of the decision. These consequences include those set out in s 501C, which in terms applies “if the Minister makes a decision under subsection 501(3) ... to ... cancel a visa”.

    (Emphasis added)

23    The Minister correctly submits that the reference to the “direct and immediate statutorily prescribed consequences of the decision in contemplation” requires consideration by the decision-maker of the effect of the change of legal status by the exercise of the power as a condition on the valid exercise of the power. Here, that change was to convert the status of the applicant from being the holder of a valid visa to a person without a visa. That carried with it the statutory consequence that he became an unlawful non-citizen, liable under s 198 of the Migration Act to removal from Australia as soon as reasonably practicable.

24    In the present case, the Minister did take into account those direct consequences. At [83] he referred to the applicant’s claims that he would face harm if returned to Nigeria and at [84] he identified that the nature of those claims indicates a potential for Australia’s non-refoulement obligations to be engaged in relation to him. The Minister then noted at [85] that the applicant was able to make an application for a protection visa and that during the processing of such an application, his claims regarding Australia’s non-refoulement obligations would be assessed.

25    However, the Minister was not required to speculate as to the outcome of that application for a protection visa or to speculate as to whether Australia’s non-refoulement obligations would be invoked if that application was successful. It is at the point of consideration of whether or not to grant such a protection visa that the relevant decision maker may be obliged to consider the effect of non-refoulement obligations; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [19] (Flick, Griffiths and Perry JJ); RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32] (Nicholas, Yates and Burley JJ).

26    Accordingly, the error that the applicant contends was made by the Minister is not established.

3.2    Ground 2 – Failure to give proper consideration to the best interests of child

27    In ground 2, the applicant contends that the Minister’s decision was affected by jurisdictional error due to a failure properly to consider the best interests of his child, because the Minister failed to consider any impact of his indefinite detention on the child.

28    The applicant submits that whilst the Minister took into account his relationship with his daughter and found that she will suffer separation anxiety with her father being taken away from her, he failed to give proper, genuine and realistic consideration to her best interests, citing as relevantly equivalent PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 at [67] (Perram J). The applicant submits that the Minister is bound to consider the best interests of the child should he be detained indefinitely while his protection visa is being processed or while he awaits removal proceedings, again citing PLQF at [67].

29    There is no dispute that in the present case, the Minister took into account the interests of the applicant’s daughter. He accepted that her best interests would be served if he maintained his close relationship with his daughter and that the relationship would be better in person (at [74]). He gave this consideration “very significant weight” as a factor in favour of permitting the applicant to retain their visa.

30    However, unlike the facts in PLQF, the Minister did not consider that the applicant would be the subject of indefinite detention. To the contrary, at [86] he noted that under s 198 of the Migration Act unlawful non-citizens are liable to removal as soon as reasonably practicable. The Minister further notes that s 198 does not authorise removal of a person to a country in relation to which a protection finding has been made in the course of considering a protection visa application (at [87]) and that it is open to the applicant to make an application for a protection visa, during which Australia’s non-refoulement obligations would be assessed (at [85]).

31    As the applicant had not at the time of the decision made an application for a protection visa, it was not incumbent upon the Minister to speculate as to the outcome of that application, for the reasons given in section 3.1 above. In short, the position of the applicant was that he was liable under s 198 of the Migration Act to be deported within a foreseeable time after the making of the decision. The Minister was not obliged to take into account the consequences of any protection visa application that the applicant may subsequently lodge. Unlike in PLQF, where the Minister had found that the applicant was stateless and accordingly could not be removed to Bhutan or Nepal and accordingly it was irrational for the Minister to fail to consider the impact that sustained detention would have on the best interests of his children (PLQF at [65] – [67]), it was not irrational or illogical for the Minister in the present case to consider the best interests of the children on the premise that the applicant would be removed from Australia as soon as reasonably practicable.

32    Furthermore, in his reasons at [91], the Minister expressly considered the effect of separating the applicant from his family, noting that by separating the applicant from his daughter and wife, “either through being returned to immigration detention or removed to Nigeria”, will have an emotional, practical and financial impact on them. He then notes that this adds some weight in considering against cancelling the applicant’s visa. There has therefore been express consideration of the effect of the applicant’s potential detention on his relationship with his daughter and weighting attributed to this.

33    Accordingly, ground 2 has not been made out.

3.3    Ground 3 – No evidence relied upon to find that criminogenic factors of the applicant are untreated

34    In ground 3, the applicant contends that the Minister fell into jurisdictional error by finding that his “criminogenic factors” were “presently untreated” in circumstances where there was no evidence upon which such a finding could have been based, citing Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; 249 FCR 275 at [54] (Perry J) and VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18] – [19] (Gray, Moore and Weinberg JJ).

35    The applicant draws attention to several matters that were before the Tribunal in support of the proposition that there was evidence before the Minister indicating that his criminogenic factors were being treated.

36    The first is at [37] of the decision of the Tribunal, which is a summary of the applicant’s proposed treatment by a psychologist, Dr Carollyne Youssef, which is as follows:

Dr Youssef said treatment would initially start on a fortnightly basis and then decrease over time. She said that the treatment would target the applicant’s vulnerabilities, namely his impulsivity and esteem issues. Dr Youssef opined that without addressing these factors with therapeutic intervention, the applicant would pose a high risk. As for the applicant’s pro-social network in Australia, Dr Youssef agreed that a good support network is part of intervention but said that a more targeted intervention was required to address underlying factors. Dr Youssef confirmed at hearing that she would be an appropriate person to provide the applicant with her recommended treatment. She also confirmed that the applicant had sought to see her for treatment, had undergone the intake process and was on the waitlist for available sessions.

37    The confirmation in the final sentence is that the applicant had sought to see her for treatment and was on a wait list. However, it was not evidence that the applicant was receiving such treatment.

38    The second was a pre-release report by Corrective Services NSW dated 6 November 2023, which records that “[the applicant] stated he is willing to undertake intervention to address his criminogenic needs”.

39    The third is a passage in the decision of the Tribunal which summarises that should the applicant’s visa be reinstated, he has a secure offer of full-time paid employment with Nakango Vision Inc.

40    The fourth is a different passage from the decision of the Tribunal noting that Walter Pospelyj, Anglican Chaplain at the Geoffrey Pearce Correctional Centre, had provided a letter dated 24 April 2024, and gave oral evidence, speaking highly of the applicant’s behaviour while in the correctional centre and saying that he would gladly offer the applicant support and assistance he requires.

41    Whilst these matters paint a picture of the applicant as a person willing to receive help, they do not provide support for the conclusion that the Minister erred in the manner for which he contends.

42    The “no evidence” ground requires, as a matter of law, that if the Minister exercises the power conferred by (here), s 501BA of the Migration Act, the exercise must be based on some evidence or other supporting material. The words “no evidence” have been held to mean “not a skerrick of evidence”; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ) citing Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 at 587 (Weinberg J).

43    The relevant reasons of the Minister are set out at [49] to [55]. In those paragraphs he accepts that the applicant has completed educational programs while incarcerated, and that he has had some engagement with psychologists during his incarceration ([49]). He then notes that the applicant made submissions that certain protective factors including the availability of full-time employment, the presence of his church community and the support of his wife and daughter will protect him against future offending but expresses the reservation that those factors were present when the applicant first offended and would not likely be sufficient to prevent reoffending (at [51]). The applicant further submitted that he intended to undertake therapeutic intervention with his psychologist, Dr Youssef. The Minister noted that the factors underpinning the applicant’s offending will be addressed by that intervention, but noted that:

…those criminogenic factors are presently untreated and, in those circumstances, I am not confident in [the applicant]’s abilities to guard against financial stressors, instances of peer pressure and spikes in his symptoms of CPTSD.

44    In the following paragraphs, the Minister notes that the applicant was ineligible to take rehabilitative courses to address the criminogenic factors while he was incarcerated or in immigration detention before observing that nonetheless, the fact remained that the criminogenic factors had not been adequately addressed or treated ([53]). Accordingly, he was not confident in the applicant’s ability to guard against future financial offending if faced with a high-risk situation in the community ([55]).

45    One might understand the frustration that a person in the applicant’s position may feel consequent upon this reasoning, particularly because it was apparently through no fault of his own that he did not receive treatment whilst he was in prison or immigration detention. It may be that this was one reason why the Minister concluded, in weighing the risk to the community of reoffending that it was “low, but not negligible” (at [58]), rather than higher. However, that is not to the point of the present ground.

46    None of the four matters to which the applicant referred in his submissions demonstrates that the Minister had evidence before him to gainsay the proposition that the criminogenic factors to which reference was made were untreated. The first and second matters refer to the prospect of treatment, but do not suggest that it is being given. The third and fourth refer to employment and community factors, which the Minister considered and regarded as inadequate.

47    The applicant separately appeared to submit that the Minister could have afforded him natural justice by inviting him to adduce evidence going to any rehabilitation that he had received between the time of the decision of the Tribunal and the Minister’s decision. This submission has little to commend it. Section 501BA(3) of the Migration Act provides that the rules of natural justice do not apply to a decision of the Minister. The statutory scheme contemplates that a decision may be made on the basis of a less than complete picture; EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; 298 FCR 492 at [64] (Abraham, O’Sullivan, Raper JJ). Even so, in his reasons, the Minister notes that the applicant had the opportunity to make submissions at the hearing before the Tribunal, presumably on the basis that the state of affairs that prevailed at that time (some five months before his decision) would suffice.

48    Accordingly, this ground of review has not been made out.

4.    DISPOSITION

49    In light of the reasons given above, the application for review must be dismissed. The applicant must pay the costs of the application, to be taxed or agreed.

50    In his prayer for relief, the applicant seeks an order that he be given a pseudonym having regard, I assume, to his intention to apply for a protection visa in the event that his current application fails. I shall order that this take place.

Associate:

Dated: 6 June 2025