Federal Court of Australia

Kiad v Minister for Immigration and Citizenship [2025] FCA 703

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to the Minister for Immigration and Citizenship.

2.    An extension of time be granted until 23 June 2025 to bring an application for judicial review of the decision made by the respondent, on 16 February 2015, to cancel the Class BC Subclass 100 (Partner) visa held by the applicant (16 February 2015 visa cancellation decision).

3.    The draft amended originating application for review of a migration decision filed on 23 June 2025 be treated as an originating application filed in the Court on that day in accordance with the extension of time granted by order 2.

4.    The respondent’s 16 February 2015 visa cancellation decision be set aside.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for an extension of time to apply for judicial review of a decision made on 16 February 2025 by the respondent, the Minister for Immigration and Citizenship, to cancel the Class BC Subclass 100 (Partner) visa held by the applicant, Mr Mohammad M H Kiad, pursuant to s 501(3)(b) of the Migration Act 1958 (Cth). If the extension of time is granted, this is also an application for that judicial review. The two applications have been heard together as a matter of convenience and efficiency. For the reasons below, I have decided that the extension of time should be granted and that the application for judicial review should succeed. All references to provisions are references to those within the Migration Act.

2    Mr Kiad and the Minister agree that the decision involves error, namely that the Minister had found that, because Mr Kiad was stateless, the cancellation of his visa would result in him being placed in immigration detention, perhaps indefinitely. That understanding was subsequently shown to be incorrect by the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 415 ALR 254, which overturned long-standing authority on the lawfulness of indefinite detention in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. Overturning a prior decision of the High Court is an uncommon event, and this was a momentous change in an area affecting many non-citizens, even though it had been long anticipated.

3    The dispute in relation to the judicial review application is confined to the materiality of that error and whether it rises to the level of being a jurisdictional error. This reflects significant developments since the Minister’s decision in relation to jurisdictional error, especially as to materiality, culminating in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610, in particular at [16] (the plurality of Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ):

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

4    The assessment of materiality therefore requires identifying the nature and extent of the role that the error played in the Minister’s decision, as a backward-looking exercise. The resolution of the complex issues has been greatly assisted by the clear and cooperative approach taken by counsel for both sides, rendering it largely a process of evaluating the Minister’s reasons.

The extension of time application

5    The application for an extension of time was filed on 23 December 2024, long after the Minister’s decision was made on 16 February 2015. The lion’s share of that delay is explained by the fact that the error in the Minister’s decision was unknown, and could not have been known, until the publication of the reasons in NZYQ on 28 November 2023. Mr Kiad also contends that the application relied upon resolution of questions of law that did not occur until AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 (Murphy, Stewart and McEvoy JJ) was decided, on 20 August 2024.

6    Referring to NZYQ and LPDT, the Full Court in AJN23 clarified the way in which error might arise in visa cancellation decisions where a decision maker assumes, based on a pre-NZYQ understanding of the correct law, that indefinite detention was an available outcome of the cancellation of a stateless person’s visa. While AJN23 was a case in which the error was found to be material, other cases have found to the contrary: see YQLH v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 293 (Stewart J), distinguished in AJN23 at [55].

7    While the Minister accepts that the principal basis for the grant or refusal of an extension of time in this case turns on the judicial review application’s merits, he maintains that the delay in applying for an extension of time is an important additional reason for refusal. I am satisfied that the time properly to be taken into account is confined to the roughly four-month gap between the decision in AJN23 on 20 August 2024, and the filing of the application for an extension of time on 23 December 2024. Mr Kiad’s case is firmly grounded on AJN23 applying, despite some differences that the Minister relies upon to distinguish it.

8    It can readily be seen that a decision as to whether to challenge the Minister’s decision was not an easy one to make in this case. The materiality argument depends upon implicit findings rather than overt ones. Mr Kiad needed advice on whether to commence this proceeding, while he was serving a lengthy term of imprisonment.

9    The difficulty involved in giving Mr Kiad that advice was evocatively and ironically made clear by the careful arguments advanced by the Minister as to why no material error took place at all. The Minister formally submits that AJN23 was wrongly decided, while accepting that I am bound by it, and argues that the error that he otherwise accepts has been made was not material.

10    All the circumstances, including the applicant prudently seeking legal advice, lead me to conclude that the relevant delay is not such as to refuse the extension of time if the case sought to be brought is sufficiently meritorious. As I have found that the application sought to be brought not only was meritorious, but should succeed, I consider that the interests of justice are best served by granting the extension of time sought.

11    For completeness, after the hearing, Mr Kiad sought leave to rely on an amended draft originating application for judicial review. It differed from the draft originating application that had been included as an annexure to a supporting affidavit filed simultaneously with the application for an extension of time only by including provision for a costs order. Given the limited nature of the amendment, it is appropriate that the extension of time be granted with respect to that amended draft.

The Minister’s cancellation decision

12    In February 2015, Mr Kiad was arrested and charged with an offence under the Criminal Code (Cth), alleging he was involved in the planning of a terrorist act in Australia. He was remanded in custody, bail refused. The Minister’s cancellation decision was made days after Mr Kiad’s arrest and charging, while he was on remand awaiting trial. Though not relevant to the present application, he later pleaded guilty and was, after a successful sentence appeal, sentenced to 16 years imprisonment with a non-parole period expiring in early February 2027: Al-Kutobi v The King [2023] NSWCCA 155; 378 FLR 218. Thus, he has not been at liberty for over 10 years, and he has never been in immigration detention.

13    The evidence supporting the charges, including protected information which could not be disclosed to Mr Kiad pursuant to s 503A, forms the basis for the Minister’s conclusions that the statutory criteria for the exercise of the visa cancellation power under s 501(3)(b) had been met, and that exercise of the discretion was appropriate.

Whether there is a material error in the Minister’s decision

14    With the qualification that the Minister formally contends that AJN23 was wrongly decided, it is common ground that the statement at [32] of the Minister’s reasons, which appears in his discussion of the exercise of the discretion to cancel Mr Kiad’s visa, contains error based on a pre-NZYQ understanding of the law:

Indefinite detention

[32]    I note that available information to the department indicates that Mr KIAD is stateless. I acknowledge, that as he is stateless, he will not be able to be removed from Australia and as a consequence of the statutory provisions may be liable to indefinite, or a long period, of immigration detention, if I decide to cancel his visa.

15    The Minister contends that the decision’s error is confined to this paragraph, where it was plainly considered as a reason not to cancel Mr Kiad’s visa, evidently because of the harshness of extended or indefinite detention. Despite an argument that is advanced to the contrary by Mr Kiad, I accept that read properly and in context, the prospect of detention was being noted by the Minister at [32] as a reason not to exercise the discretion to cancel the visa. However, for the reasons that follow, I do not accept that the error can be readily, to adopt a helpful and evocative expression used by senior counsel for the Minister, “ring-fenced” from the rest of the reasons.

16    In opposition to any such ring-fencing, Mr Kiad relies upon AJN23 at [51]:

… A multifactorial evaluative decision such as that of the Minister cannot be analysed as a simple balancing exercise; “[a] task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments”: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] per Colvin, Stewart and Jackson JJ, and see also [27] and [34]-[35]. Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot “be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT at [16].

17    It follows that the paragraphs in the Minister’s reasons relied upon by Mr Kiad require close consideration to determine whether the error expressly manifested in [32] infects all or any of them, implicitly or otherwise. That is, the question is whether any other paragraphs were affected by an error that, had it not been made, meant that there was a realistic possibility that the decision could have been different. Or to use the language in LPDT at [16] reproduced above, the question is whether it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made.

18    Mr Kiad’s application must succeed if he can show only that there was a realistic possibility that his visa would not have been cancelled but for the error permeating other parts of the Minister’s reasons; and conversely, his application must fail if the Minister can show that Mr Kiad’s visa would still have been cancelled. The Minister may not have to go that far in all cases, but it really is such a dichotomy in this case.

19    The cancellation power that was exercised by the Minister was in s 501(3)(b), which enables a visa to be cancelled by the Minister, without the rules of natural justice or the code of procedure in the Migration Act applying, and without there being any right to merits review if:

(a)    the Minister reasonably suspects that the visa holder does not pass the character test as defined in s 501(6); and

(b)    the Minister is satisfied that the visa cancellation is in the national interest.

20    The definition of the character test relied upon by the Minister was that in s 501(6)(d)(v), which relevantly provided that, for the purposes of s 501 and thus s 501(3), a person does not pass the character test if, in the event the person was allowed to remain in Australia, there is a risk that the person would:

represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way …

21    The Minister’s reasons in addressing those statutory criteria are relatively short, comprising 39 paragraphs over four and a half pages. They are divided into:

(a)    an introduction;

(b)    consideration of whether Mr Kiad did not pass the character test at the point at which he had only been charged with offences, albeit very serious ones, and therefore necessarily retained the presumption of innocence;

(c)    consideration of whether it was in the national interest to cancel Mr Kiad’s visa;

(d)    considerations going to the exercise of the discretion to cancel Mr Kiad’s visa; and

(e)    a conclusion.

22    Within that framework, the following paragraphs of the reasons are relied upon by Mr Kiad to demonstrate the contamination of the Minister’s decision by the error that he would face prolonged or indefinite detention if his visa was cancelled by reason of being stateless and therefore being unable to be removed from Australia, being the substance of the error at [32].

23    Under the character test heading, having regard to all the available information including information that could not be disclosed to Mr Kiad, the Minister concluded that Mr Kiad represented an unacceptable risk to the Australian community. In the final paragraph before the conclusion that he suspected that Mr Kiad did not pass the character test, the Minister said:

[15]    Mr KIAD is currently on remand, bail has been refused and a bail hearing adjourned. However, a bail decision can be revisited at short notice. I consider that if bail is granted Mr KIAD may be at liberty in the community. If he was so at liberty then I reasonably suspect that he would represent a danger to the Australian community.

24    This paragraph was not ultimately relied upon by Mr Kiad as evidencing contamination by the same error shown at [32], but rather as demonstrating that the Minister was aware of a dichotomy between Mr Kiad retaining a visa and being able to be in the community if he was granted bail, and him not retaining a visa, so that even if bail was granted, he would not return to the community because he would then be in immigration detention. While this paragraph does not include any overt reference to prolonged or indefinite detention, I am satisfied that this is not just an available way to read [15], but the most rational way of reading it. While this part of the reasons was concerned with the character test, the threshold of being a danger to the community would only be met if Mr Kiad was able to be a part of that community and not either in gaol or in immigration detention.

25    The Minister’s reasons took the next step of considering whether cancelling Mr Kiad’s visa would be in the national interest, recognising that this was a separate and distinct question from whether he passed the character test: [17]. In that context, Mr Kiad relies upon the immediately following paragraphs of the Minister’s reasons as being implicitly affected or influenced by, but not yet contaminated by, the same error as in [32]:

[18]    In considering whether it is in the national interest to cancel Mr KIAD’s visa, I formed the view that it is reasonable to conclude that matters of national interest could include, amongst other things, the protection of the Australian community from acts of terrorism.

[19]    In considering the national interest, I did have regard to the risk of Mr KIAD engaging in such behaviour. I find that, even if the risk of him engaging in such behaviour is low, great harm to the community or a segment of the community could result should Mr KIAD carry out such activities in Australia.

26    It is made express in the above paragraphs that the Minister was of the view that the national interest included protecting the Australian community from acts of terrorism, that he should have regard to the risk of Mr Kiad engaging in such behaviour, and that even if the risk of that happening was low, great harm could result if that took place. However, those paragraphs convey more than that. Implicit in this reasoning is that avoidance of what might be only a low risk was only possible if Mr Kiad remained in custody, or had his visa cancelled in circumstances in which he would then be in immigration detention for a prolonged period or indefinitely (especially given the reference at [32], repeated at [37], to him being stateless and not able to be removed from Australia).

27    The low risk adverted to depended not just on the possibility of Mr Kiad being granted bail identified at [15], but also upon him being able to take advantage of being on bail by reason of still having a visa so as not to be kept in immigration detention. The alternative plainly being considered, in the context of considering the national interest, is that only cancellation of Mr Kiad’s visa would eliminate that risk. That interpretation then makes sense of the conclusion as to the national interest at [21]:

I thereby conclude that it would be in the national interest, having regard to all the information inclusive of the protected information, for me to cancel Mr KIAD’s visa.

28    Having concluded that the statutory criteria for the exercise of the power to cancel Mr Kiad’s visa had been met, the Minister’s reasons then turned to the exercise of the discretion. After the Minister observed at [22] that he was mindful of the Australian government’s commitment to using s 501 to “protect the Australian community from the unacceptable risk of harm that may result from criminal activity or other serious conduct by non-citizens”, he turned to that specific topic, under the heading “Protection of the Australian community”:

[23]    The Government is committed to protecting the Australian community from the unacceptable risk of harm. In considering the risk of harm to the community as a result of a person’s conduct I consider that violent acts, or the threat of violence/intimidation, are very serious. In addition offences involving terrorism are repugnant to the Australian community.

[24]    I note that Mr KIAD has not physically harmed anyone in Australia to date and has no criminal history in Australia or offshore. He nonetheless has been arrested and charged for his alleged involvement in the preparation for, or planning a terrorist act.

[25]    I find, even if the risk of Mr KIAD engaging in such behaviour is low, great harm to the community or a segment of the community could result should Mr KIAD carry out such terrorist acts in Australia. The harm that could result is so serious that any risk of it occurring in the future is unacceptable.

29    Paragraph 23 provides the immediate context for [25], referring overtly to protecting the Australian community from an unacceptable risk of harm, including from offences involving terrorism. The Minister then finds at [25] that even if the risk of Mr Kiad planning or preparing for a terrorist act was low, the risk was unacceptable. None of that makes much sense unless, as with [18] and [19], implicit in this reasoning is that avoidance of that risk was only possible if Mr Kiad remained in custody, or had his visa cancelled in circumstances in which he would then be in immigration detention for a prolonged period or indefinitely.

30    Again, it is implicit that the Minister understood that the risk of Mr Kiad being at liberty in the community would arise only if he was granted bail (as identified at [15]) and his visa was not cancelled, so that he was not placed in immigration detention. It was plainly considered, this time in the context of considering the exercise of discretion, that only cancellation of Mr Kiad’s visa would eliminate that risk.

31    It follows that I am satisfied that the admitted error in [32], where it is not material, is also implicit in paragraphs that articulate important reasons for the ultimate conclusion that Mr Kiad’s visa should be cancelled. That error in those places was therefore material, and as a result constituted jurisdictional error.

32    I am unable to be satisfied that, had this clearly implicit error not been made, a reasonable possibility of a different result can be excluded. It is not speculation, for example, to note that among the outcomes expressly presented to the Minister to consider, and rejected by him while holding an erroneous understanding as to indefinite or prolonged detention, was the option of deferring the consideration of visa cancellation and awaiting the outcome of the criminal proceedings. This Court is not conducting a forbidden merits review or impermissibly looking forward by identifying a possible alternative outcome that was actually before the Minister at the time of making the visa cancellation decision, and being unable to rule out that non-cancellation outcome as being realistically possible.

33    It follows that the Minister’s decision must be set aside and accordingly Mr Kiad’s visa is necessarily taken never to have been cancelled. Mr Kiad also seeks an order restraining the Minister from giving effect to the visa cancellation decision. I do not consider that he has established any need for such an order if the Minister’s decision was set aside.

34    It has not been suggested that there is any reason why costs should not follow the event. Accordingly, the Minister must pay Mr Kiad’s costs.

Associate:

Dated:    27 June 2025