Federal Court of Australia

Bah v Minister for Immigration and Citizenship [2025] FCA 821

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Minister for Immigration and Citizenship”.

2.    The amended originating application for judicial review of a migration decision of the respondent filed on 7 February 2025 be dismissed.

3.    The applicant pay the costs of the respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an amended originating application for judicial review of a migration decision of the respondent (Minister) made on 3 June 2024. The amended originating application was filed on 7 February 2025. The Minister had exercised his discretion under s 501BA of the Migration Act 1958 (Cth) (Act) to set aside a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 August 2023. In its decision the Tribunal had in turn set aside a decision of a delegate of the Minister made on 18 May 2023, and ordered pursuant to section 501CA(4)(b)(ii) of the Act that the mandatory cancellation of the applicant’s visa be revoked.

2    The applicant relied on one ground of review, namely:

1.    The Respondent’s conclusion that cancellation of the Applicant’s visa was in the national interest was not supported by logical grounds.

3    It is convenient at this point to examine the background to the present application.

Background

4    The applicant is a male citizen of Sierra Leone, having been born there in 1991. He arrived in Australia on 9 September 2010 at 18 years of age. The applicant arrived on a class XB Subclass 202 – Global Special Humanitarian Visa.

5    The applicant’s parents were murdered when he was a young child. He then spent several years living as a refugee in Guinea with his brothers before arriving in Australia.

6    On 5 September 2018, the applicant was convicted in the Ipswich District Court of rape and attempted rape (in respect of the same incident). He was sentenced to a term of imprisonment of four years for the rape conviction and two years for the attempted rape conviction.

7    The circumstances relating to the applicant’s convictions were described by the District Court as “utterly abhorrent”. The applicant entered the house of a young woman with whom he had previously interacted, but was otherwise a relative stranger. He was intoxicated and digitally raped the victim and attempted to rape her with his penis.

8    At the time of this offending, the applicant was subject to a probation order and community service order. The applicant has a significant criminal history, including:

(a)    multiple offences relating to a failure to appear to the Court in accordance with an undertaking (including one offence causing him to be imprisoned for one month in 2015);

(b)    multiple public nuisance offences;

(c)    assault or obstruction of a police officer;

(d)    breaches of community service orders; and

(e)    possession of dangerous drugs.

9    Following the applicant’s conviction of rape and attempted rape, his criminal offending continued. He was subsequently convicted of:

(a)    failure to appear and drug offences on 8 September 2021;

(b)    breach of suspended sentence on 2 December 2021;

(c)    possession of dangerous drugs on 26 August 2022;

(d)    breach of suspended sentence on 3 March 2023; and

(e)    possessing dangerous drugs and drug utensils on 29 April 2024.

Procedural History

10    On 16 December 2021, a delegate of the Minister mandatorily cancelled the applicant’s visa under s 501(3A) of the Act (Minister’s First Decision). Under s 501(3A), the Minister must cancel a person’s visa if they do not pass the character test and are serving a sentence or sentences of imprisonment totalling 12 months or more.

11    The applicant subsequently requested the Minister to revoke the original decision. On 17 May 2023, a delegate of the Minister decided under s 501CA not to revoke the original decision (Minister’s Second Decision).

12    On 4 August 2023, the Tribunal set aside the Minister’s Second Decision and substituted it with a decision to revoke the Minister’s First Decision (Tribunal Decision).

13    On 3 June 2024, the Minister set aside the Tribunal Decision (Minister’s Third Decision).

Minister’s Third Decision

14    The Minister’s Third Decision is the decision before the Court for judicial review. The Minister stated that he had exercised his discretion under s 501BA of the Act because he was satisfied that the applicant did not pass the character test in light of the operation of s 501(6)(a) of the Act, referable to the terms of s 501(7)(c) or s 501(6)(e) of the Act. In so finding, the Minister noted that the applicant had been convicted of rape and attempted rape, for which he was sentenced to four years and two years’ imprisonment.

15    The Minister considered whether the cancellation of the applicant’s visa was in the national interest. The Minister observed that matters of national interest included, amongst other things, the protection of the community and the expectations of the Australian community. In examining each element, the Minister found, in summary:

    In relation to the protection of the community: all offending involving violence or sexual assault, particularly against women or children, is viewed very seriously by the Australian community. The Minister noted that the sentencing Judge described the applicant’s conduct in this case, in entering the house of a relative stranger and raping her, as “utterly abhorrent”. The Minister agreed with that remark of the sentencing Judge, noted that the offences had occurred at a time when the applicant was subject to a probation order and community service order, and noted further that the applicant had lied to the police on two occasions by pretending that he had been elsewhere at the time of the rape. The Minister observed that the sentences of the applicant were a further indication of the seriousness of the offending. The Minister noted:

25. In addition to the above very serious offences, Mr Bah has been convicted of a number of other offences during his time in Australia. In particular, Mr Bah has been convicted of:

- multiple offences relating to a failure to appear to the Court in accordance with an undertaking, including an offence causing him to be imprisoned for one month on 19 October 2015;

- multiple public nuisance offences;

- assault or obstruct police officer;

- breaches of community service orders; and

- possession of dangerous drugs.

26. I consider that, in addition to the very serious sexual offences Mr BAH has committed, the cumulative effect of Mr BAH's criminal offending is objectively serious.

27. I am also concerned that a number of Mr BAH's offences occurred after his rape and attempted rape conviction. In particular, Mr BAH was convicted of breach of his suspended sentence on 3 March 2023, possession of dangerous drugs on 26 August 2022, a breach of his suspended sentence on 2 December 2021, and failure to appear in accordance with an undertaking and drug offences on 8 September 2021. Of particular concern is that Mr BAH was again convicted of possessing dangerous drugs and possessing drug utensils on 29 April 2024, after his visa was reinstated by the AAT in August of 2023.1 find that the Courts and AAT have given Mr BAH multiple opportunities to rehabilitate himself, and he has failed to take up these opportunities multiple times.

28. Noting the frequency of Mr BAH's offending and the cumulative effect of such repeated offending, I find that, taken as a whole, Mr BAH's criminal conduct is very serious. In particular, the Australian community and Australian government have no tolerance for sexual offences

    In relation to 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 serious physical and/or psychological injury to members of the Australian community. I consider in particular that, if the applicant was to commit further sexual offences, this could have the same "devastating" impact as it had on the victim of his offences. Further, the Minister found:

•    The witnessing of the murder of his parents at a young age would have caused the applicant significant trauma, the effects of which would be ongoing. The applicant’s drug taking may have also contributed to his offences.

•    The applicant indicated remorse after committing the rape and had undertaken some rehabilitative courses relating to drugs and alcohol. The Minister continued:

…I note with concern however that Mr BAH has not undertaken any rehabilitation with respect to sexual offending and that his drug and alcohol rehabilitation did not prove salutary as he has been convicted of further drug offences since having his visa reinstated by the AAT.

•    Although the applicant may have stated that he was remorseful for his offending, he nonetheless continued to offend after his visa was reinstated by the Tribunal. This was a very serious matter because it showed a disregard for Australian laws and the justice system, and for the further opportunity to remain in Australia afforded to him by the AAT. The Minister further found that the applicant’s further offences relating to drugs meant he could not be considered to be a low risk of drug taking, and consequently there was a real risk of the applicant committing further sexual offences.

•    Despite being given multiple opportunities by the Courts to rehabilitate, the applicant had failed to do so. This was also recognised by the sentencing Magistrate on 5 September 2018.

•    The Minister concluded that there was a moderate likelihood that the applicant would reoffend, and that if he did so it would be likely to result in serious psychological and/or physical harm to his victims. The Minister gave this consideration strong weight in support of cancellation being in the national interest.

    In relation to the expectations of the Australian community, the Minister observed that the Australian community expected non-citizens to obey Australian laws while in Australia. Cancellation of a visa may be appropriate because of the nature of the character concerns or offences. In this case the Minister concluded that the applicant raised serious character concerns.

16    The Minister concluded that the use of his discretionary power to cancel the applicant’s visa was in the national interest.

17    The Minister then examined other considerations that might support a decision not to cancel the applicant’s visa despite the Minister being satisfied that it was in the national interest to do so. In particular the Minister had regard to:

    The best interests of minor children, and the fact that the applicant had two children, at the time aged ten and two years of age. The Minister noted that the two year old child was in the custody of child protective services, and had been since shortly after her birth. The Minister accepted that it would be in the best interests of both of the applicant’s children for the applicant to remain in Australia. The Minister also noted that the applicant had minor nieces and nephews in Australia and accepted that it was in their best interests for him to remain in Australia.

    The length of time that the applicant had been ordinarily resident in Australia, namely 14 years. The Minister noted that the applicant had not spent his formative years in Australia, but rather had spent a significant period of his life in Australia and had family members (including children) in Australia.

    The positive contribution to the community because of the applicant’s relatively strong employment history and his volunteering.

18    The Minister examined impediments the applicant would face if removed to Sierra Leone, and took into consideration the following factors:

Age and health

63. Mr BAH is aged 32 and has not identified any significant adverse physical health issues. Mr BAH has submitted that he is concerned that, if returned to Sierra Leone, his mental health will suffer because of his lack of support, in addition to the shame he would feel about letting everyone down. I accept that Mr BAH's return to Sierra Leone would cause him mental hardship, and have given this factor weight against cancelling his visa.

Language and/or cultural barriers

64. I do not consider that Mr BAH would face any significant language or cultural barriers if returned to Sierra Leone, given that he arrived in Australia as an adult.

Social, medical and/or economic support available in Sierra Leone

65. I find that Mr BAH will experience practical, financial and emotional hardship if removed to Sierra Leone, because of his lack of family support, and his experiences of trauma earlier in his life in Sierra Leone. Mr BAH has outlined that he would feal isolated in Sierra Leone, and would not know what to do to establish himself... He fears that he would never have the opportunity to see his children again, and fears that he would not recover from this… He also fears for his safety as he would have nowhere to live and would not have the protection of a family home… I accept that Sierra Leone is not a country with equivalent social, economic or health supports to the supports available in Australia. I also accept that Mr BAH will experience significant practical, financial and emotional hardship if returned to Sierra Leone however I consider that this would lessen over time. Nevertheless I have attributed weight against cancelling Mr BAH's visa given these matters.

19    The Minister concluded that considerations against cancellation of the applicant’s visa were outweighed by the national interest considerations in this case. Accordingly, the Minister exercised his discretion to set aside the decision of the Tribunal.

SUBMISSIONS OF THE PARTIES

Submissions of the applicant

20    In summary, the applicant submitted:

    In order to exercise his discretion under s 501BA, the Minister first needed to reach a state of satisfaction that cancellation of the applicant’s visa was in the national interest.

    The satisfaction of the Minister must be attained reasonably.

    In this case the Minister attributed strong weight in support of cancellation being in the national interest to the Minister’s finding that there was a moderate likelihood that the applicant would reoffend in a similar fashion. This was in direct contradiction to the finding made by the Tribunal that the risk of the applicant committing a further sexual offence was “miniscule”, and that there was no real risk that he would commit further sexual offences. The Minister did not explain why he considered the Tribunal’s finding to be wrong.

    Although the applicant had offended further following his convictions for rape and attempted rape, and been convicted (on 24 April 2024) for possessing dangerous drugs and possessing drug utensils:

•    there was no evidence about what form of drugs or utensils the applicant was in possession of, or of the surrounding circumstances;

•    the applicant’s evidence before the Tribunal was that, at the time of his sexual offending, he had taken a combination of drugs he had never previously taken;

•    the applicant’s evidence before the Tribunal was that, aside from the occasion of his sexual offending, the only drug that he consumed was cannabis, and that the subsequent convictions for drug possession after his rape conviction were for possessing cannabis. As the Tribunal found, possession of marijuana “is quite different to the cocktail of methamphetamine, cocaine, alcohol and pills that he had taken when he committed the very serious [sexual] offences.”; and

•    in the circumstances the Minister could not rationally conclude that the applicant’s subsequent conviction for possessing drugs caused him to pose a “real risk” or “moderate likelihood” of committing another sexual offence like those he previously committed.

    The deliberative pathway taken by the Minister in reaching the state of satisfaction that it was in the public interest to cancel the applicant’s visa was illogical and not in conformity with accepted notions of reasoning because:

•    the Minister’s finding regarding the applicant’s risk of reoffending, which the Minister gave “strong weight” to, was in direct contradiction to the finding made by the Tribunal;

•    the Minister did not properly evaluate the effect or impact of the relevant features identified by the Tribunal, including that they demonstrate effective specific deterrence and rehabilitation, on the likelihood of the applicant reoffending;

•    the Minister did not explain, capable of rational justification, why he considered the Tribunal’s finding that the risk of the applicant committing a further sexual offence was miniscule to be wrong; and

•    the Minister’s finding regarding the applicant’s risk of reoffending was not supported by the evidence and was reached in the absence of an intelligible justification.

Submissions of the Minister

21    In summary, the Minister submitted that his conclusion was not illogical because:

    In exercising his discretion under s 501BA of the Act, the Minister was not required to rebut or consider the findings of the Tribunal.

    In any event, a logical decisionmaker could have arrived at the same conclusion as the Minister in this case because:

•    the use of drugs and alcohol is no excuse and in no way diminishes a person’s culpability for committing rape and attempted rape;

•    the applicant claimed that unspecified drugs contributed to his offending, and that because he undertook to no longer use them his risk of reoffending was low, however the material before the Minister included:

(i)    details of the applicant’s repeated drug offending after he was convicted of the rape and attempted rape offences in late 2018;

(ii)    the sentencing Judge’s remarks from 2 December 2021 that “drugs clearly remain a problem” for the applicant and that he has “not been motivated to get help” and his “response has been poor” despite obvious deterrent; and

(iii)    after the Tribunal made its decision on 4 August 2023, the applicant committed and was convicted of possessing dangerous drugs (on 25 November 2023) and possessing utensils or pipes etc for use (on 25 November 2023).

    There was a logical connection between the Minister’s finding that the applicant was a risk to the community due to the moderate risk of him reoffending, including further sexual offending, when assessed against the applicant’s own claim that his offending was contributed to by non-specific drug use, and the fact that he actually continued to commit drug-related offences.

    Even if the Minister did not have details of the form of drugs which underpinned the applicant’s most recent convictions, the Minister’s conclusion was not illogical because he relied on other factors in concluding that the applicant was of moderate risk of reoffending.

CONSIDERATION

22    Section 501BA of the Act 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 8.

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

23    The terms of s 501BA are clear. Under that section, the Minister has a discretion to set aside a decision of a delegate or the Tribunal. In so doing, the Minister is not required to explain why he or she disagrees with the decision of the delegate or the Tribunal. This was made plain by the Full Court in in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270. In particular, as Mortimer J (as her Honour then was) said in that case at [28]:

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

24    It follows that the Minister was not required to have regard to the decision of the Tribunal, including its finding that there was a “miniscule” chance of the applicant reoffending. To the extent that the applicant contends that the Minister was so required, that argument lacks merit.

25    In any event, I am not persuaded that any illogicality attended the Minister’s decision. The concept of illogicality as a form of jurisdictional error was explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 as follows:

135.    Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

26    The applicant faces a high threshold to substantiate his contention that illogical grounds underpinned the Minister’s conclusion that cancellation of the applicant’s visa was in the national interest (see BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [47]). In my view his arguments do not reach that threshold. In particular I note:

    The fact that the Tribunal took a different view of the likelihood of the applicant reoffending to the Minister is irrelevant.

    It is not in dispute that notwithstanding the decision of the Tribunal, his criminal offending continued thereafter, resulting in further convictions for offences of possessing dangerous drugs and utensils.

    The evidence before the Minister was that the applicant had shown little to no interest in rehabilitation, a view echoed by the sentencing Courts of 5 September 2018 and 2 December 2021.

    The applicant pointed to the finding of the Tribunal that the applicant’s subsequent convictions for drug possession after his conviction were for possessing cannabis, and possession of cannabis “is quite different to the cocktail of methamphetamine, cocaine, alcohol and pills that [the applicant] had taken when he committed the very serious [sexual] offences”. However, it was plainly open to the Minister to take a different, negative, view of the risks of the applicant continuing to take drugs, of the risks of the applicant returning to taking the “cocktail” of drugs he claimed he had taken when he committed the rape, and ultimately the risk of the applicant reoffending in a similar, and very serious, fashion. Such a view of those risks as taken by the Minister was not illogical.

    It was open to the Minister to find, in considering the need to protect the Australian community, that all offending involving violence or sexual assault, particularly against women or children, is viewed very seriously by the Australian community, and that the criminal conduct of the applicant was (as described by the sentencing Judge) “utterly abhorrent”. It was also relevant for the Minister to note that the applicant engaged in that conduct whilst already subject to a probation order and community service order for previous offending.

    In circumstances where it was open to the Minister to form a view referable to the risk of the applicant reoffending in such a serious manner, it was plainly open to the Minister to conclude that cancellation of the applicant’s visa was in the national interest.

27    The amended originating application should be dismissed, with costs to follow the event.

Associate:

Dated:    18 July 2025