Federal Court of Australia

RCWV v Minister for Immigration and Multicultural Affairs [2025] FCA 907

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time for filing an application for judicial review of the respondent’s decision 11 June 2024 be extended to 7 February 2025.

2.    The draft originating application dated 6 February 2025 annexed to the affidavit of the applicant dated 7 February 2025 and marked RCWV-1, be treated as an originating application.

3.    The originating application dated 6 February 2025 be dismissed.

4.    The applicant pay the respondent’s costs of the application to be agreed or assessed.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    By an application dated 6 February 2025 the applicant seeks an extension of time within which to bring an application for judicial review of a decision made personally by the then Minister on 11 June 2024 pursuant to s 501BA(2) of the Migration Act 1958 (Cth) (the Act). The then Minister had set aside a decision of the Administrative Appeals Tribunal (the Tribunal) dated 10 May 2024 which had revoked the cancellation of the applicant’s visa under s 501CA (4) of the Act, and cancelled the applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa.

2    The respondent Minister does not oppose the application for an extension of time, and so the hearing proceeded on the basis that it had been granted. It is therefore only necessary to deal with the applicant’s two grounds of review which are set out in a draft originating application. The hearing proceeded on the basis that the draft originating application was to be treated as an originating application. The Minister’s position is that neither of the grounds advanced by the applicant in the originating application reveal jurisdictional error.

3    For the reasons that follow I have determined that the grounds of review advanced by the applicant are without merit, and that the originating application should be dismissed.

background

4    The applicant is a 36 year old male who was born in a displaced persons camp in Sudan in 1988. He first arrived in Australia on 19 May 2009 aged 20 on a humanitarian visa. He lived through violence and instability in the Sudan civil war, and now claims that he is stateless and does not have a right to citizenship of, or a right to reside in, any country.

5    On 20 February 2020, the applicant was convicted of “assault occasioning actual bodily harm (DV) – T2” and was sentenced to an 18-month intensive correction order to be served in the community. The intensive correction order was later revoked, and the applicant was made to serve the remainder of his sentence as a full-time custodial sentence of imprisonment. As a result, on 3 September 2020, a delegate of the Minister mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Act, on the basis that the applicant had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (Mandatory Cancellation Decision). The applicant was placed in immigration detention on 12 February 2021.

6    On 11 June 2021, the applicant applied for a Class XA protection visa (subclass 866). On 19 November 2021, a delegate of the Minister refused to grant the protection visa on the basis that the delegate was not satisfied the applicant was a person to whom Australia owed protection obligations. On 31 October 2022, that decision was affirmed by the Tribunal. The applicant unsuccessfully appealed that decision to the Federal Circuit and Family Court of Australia (Division 2): see DWK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 393; and then to this court: see DWK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1403.

7    On 16 December 2021, the applicant was re-notified of the Mandatory Cancellation Decision because the previous notification was invalid, and invited to make representations to seek the revocation of it. On 11 January 2022 the applicant sought revocation of the Mandatory Cancellation Decision. On 6 June 2023 a delegate of the Minister decided not to exercise his discretion under s 501CA(4) of the Act to revoke the decision (Non-Revocation Decision).

8    The applicant applied to the Tribunal for review of the Non-Revocation Decision, and on 30 August 2023 the Tribunal affirmed the Non-Revocation Decision.

9    The applicant sought judicial review of the Non-Revocation Decision in this court, and on 27 October 2023 the court determined that the Non-Revocation Decision was affected by jurisdictional error and ordered that the matter be remitted to the Tribunal for reconsideration.

10    On 10 May 2024, the Tribunal (differently constituted) set aside the Non-Revocation Decision and substituted a decision that the cancellation of the applicant’s visa was revoked under
s 501CA(4)(b)(ii) of the Act. In making its decision the Tribunal applied Direction No. 99. The effect of the Tribunal’s decision was to restore the applicant’s humanitarian visa. The applicant was released from immigration detention on the same day.

11    On or about 3 June 2024, a lengthy and detailed submission was provided to the then Minister for consideration of the exercise of the power in s 501BA of the Act in the applicant’s case.
On 11 June 2024, the then Minister decided to exercise his discretion under s 501BA(2) of the Act to set aside the decision of the Tribunal dated 10 May 2024 and to cancel the applicant’s visa. The reasons for that decision were set out in a statement of reasons.

12    The Minister records, correctly, that in the then Minister’s decision he observed that, under
s 501BA(3) of the Act, the rules of natural justice do not apply to a decision under s 501BA(2). The Minister says that although this means that the then Minister was not required to apply the rules of natural justice when making a decision under s 501BA(2) of the Act by giving the affected person an opportunity to be heard before making the decision, he was aware that
s 501BA(3) did not prohibit him from affording such an opportunity. The Minister notes that, nonetheless, it is apparent in this case that the then Minister chose to proceed without giving the applicant an opportunity to be heard before making his decision. The then Minister noted that he was cognisant that, as a consequence, the applicant had not had the opportunity to advance reasons why an adverse decision should not be made. The then Minister further noted that he had given consideration to information given by the applicant in relation to the original request for revocation and the Tribunal proceedings which resulted in the Tribunal revoking the decision to cancel the applicant’s visa.

GROUND 1 – ALLEGED FAILURE TO CONSIDER SUBMISSIONS AND EVIDENCE

13    Against this background ground 1 of the originating application is in the following terms:

The Minister erred jurisdictionally by failing to consider the submissions and evidence in support of revocation advanced by the Applicant on 26 February 2024.

Particulars

(i)    On 26 February 2024, in connection with proceedings in the Administrative Appeals Tribunal relating to a decision not to revoke the cancellation of the Applicant’s visa, the Applicant’s solicitor emailed the Minister’s solicitor advancing submissions and evidence in support of revocation.

(ii)    On the same day, the Minister’s solicitor responded to the effect that the submissions and evidence would be provided to the Minister for consideration.

(iii)    In making the decision under s 501BA, the Minister purported to consider the submissions and evidence the Applicant had advanced in support of revocation.

(iv)    Further, in deciding not to afford the Applicant an opportunity to advance further submissions and evidence, the Minister purported to rely on the fact that he would consider the submissions and evidence the Applicant had previously advanced in support of revocation (see paragraph 10 to 12 of the Minister’s reasons).

(v)    In fact, the Minister in making the s 501BA decision, and the anterior decision about whether to afford the Applicant an opportunity to advance further submissions and evidence, did not consider the submissions and evidence advanced by the Applicant on 26 February 2024.

The applicant’s submissions

14    The applicant submits that the then Minister was obliged to decide, and to reason towards his decision, reasonably. Although the applicant accepts that the power in s 501BA(2) of the Act is not conditional on an obligation to afford natural justice, and thus an obligation to consider representations, he submits that like all statutorily conferred powers the power in s 501BA(2) is subject to an implied limit that it be exercised reasonably. This, the applicant submits, requires not only that the outcome be reasonable, in the sense of it having an evident and intelligible justification, but also that the process of reasoning by which that outcome was reached is reasonable.

15    The applicant submits that requirements of reasonableness can be informed by the fact that, while there is no obligation to afford natural justice, the power in s 501BA(2) will ordinarily be exercised having regard to representations previously made by a visa holder in the revocation process. In this regard the applicant submits that the exclusion of natural justice was considered by Parliament to be ameliorated by the fact that the person affected would have already been afforded natural justice in the revocation process available under s 501CA of the Act: see the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (Amending Act) at [84]. The applicant submits further that the non-application of the rules of natural justice informs the content of the reasonableness condition on s 501BA(2), referring to LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299 at [45] (Charlesworth J).

16    The applicant submits that a decision by the Minister not to exercise the implied incidental power to seek further information from a visa-holder must also be subject to the limits of reasonableness. It is said that a failure to exercise that incidental power reasonably is capable of taking the ultimate s 501BA(2) decision outside of jurisdiction in the same way that the failure to exercise the power in the now repealed s 473DC of the Act to seek “new information” was held to be capable of rendering unreasonable decisions under the “Fast Track” statutory regime: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [49] (Gageler, Keane and Nettle JJ); ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [29]–[30] (Kiefel CJ, Bell, Gageler and Keane JJ); DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 at [19] (Kiefel CJ, Gageler, Gordon and Steward JJ).

17    Thus the applicant submits that where a Minister in the exercise of the s 501BA(2) power declines to seek further information and purports to consider matters that were not in fact considered, that may render the decision unreasonable.

18    The applicant notes also, to similar effect, that it has been held in related statutory contexts that a failure by a decision maker to have regard to relevant information in their actual or constructive possession can result in jurisdictional error if the information was material to the decision, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30–31 (Gibbs CJ), and at 45 (Mason J); DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411 (Kenny, Moshinsky and Bromwich JJ); and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540 at [113]–[115] (Lee and Wheelahan JJ). The applicant submits that these authorities are relevant in the s 501BA(2) context, although he accepts that they must be applied bearing in mind the different statutory context.

19    Having regard to these principles the applicant submits that the Minister misunderstood the facts in the present case and that this rendered the decision unreasonable.

20    In this regard the applicant submits that on 26 February 2024, in connection with the consideration of the Non-Revocation Decision in the Tribunal, the applicant’s solicitor emailed the Minister’s solicitor, the Australian Government Solicitor (the AGS), advancing submissions and evidence in support of revocation (26 February email).

21    The first submission made in the 26 February email, the applicant contends, was that Sudan was currently in a civil war and that forcefully returning the applicant there would result in his death. That submission was made with reference to the United Nations High Commissioner for Human Rights’ report on the human rights situation in Sudan dated 22 February 2024, which was attached to the 26 February email.

22    The second submission in the 26 February email, the applicant contends, related to the applicant’s inability to establish Sudanese citizenship and to obtain travel documents. It was said this would render him liable to prolonged or indefinite detention.

23    The third submission in the 26 February email, the applicant contends, related to the applicant’s “severe mental health issues”. It was submitted that deportation to Sudan or prolonged detention would likely exacerbate these mental health problems. There was also a submission relating to the costs to the taxpayer of detaining the applicant, and of then releasing him, and the medical and other expenses that would be incurred in light of his mental health.

24    The fourth submission in the 26 February email, the applicant contends, related to the impact of detention or removal on the applicant’s Aboriginal family, especially his children. The disadvantage experienced by Aboriginal people in Australia was emphasised, as were the effects of intergenerational trauma. That submission was made with reference to a report on intergenerational trauma which was attached to the 26 February email.

25    The applicant submits that the Minister’s solicitor responded immediately to the 26 February email to the effect that the submissions and evidence in the email would be provided to the Minister for consideration. As will be seen, however, the Minister disputes, correctly, that this is the proper construction of this communication.

26    The applicant records that on 8 April 2024 the Minister’s solicitor emailed, indicating that the Minister had considered “the request” (that is to say, the request to revoke the cancellation, in essence by conceding the Tribunal proceedings). The applicant submits that this email provided no clarity as to whether the Minister had done so personally or via legal representatives, nor whether the text of the request itself (and accompanying documents) had been considered, or only the fact of a request having been made.

27    The applicant submits that in any case it appears that the Minister who later made the
s 501BA(2) decision did not have the 26 February email before him at the time of making his decision under s 501BA(2) of the Act, that communication not being referred to in the submission to the Minister nor the “index of relevant material” to which the Minister had regard.

28    The applicant submits that this omission assumes significance in the circumstances of this case because, in making the decision under s 501BA(2) of the Act, the Minister purported to consider the submissions and evidence the applicant had advanced in support of revocation. The applicant refers in this regard to paragraph 12 of the Minister’s reasons.

29    The applicant submits further that in deciding not to afford him an opportunity to advance further submissions and evidence, the Minister purported to rely on the fact that he would consider the submissions and evidence the applicant had previously advanced in support of revocation. The applicant refers in this regard to paragraphs 10 to 12 of the Minister’s reasons.

30    In actual fact, the applicant contends, in making the decision under s 501BA(2) of the Act, and the incidental decision about whether to afford the applicant an opportunity to advance further submissions and evidence, the Minister did not consider the submissions and evidence advanced by the applicant in the 26 February email.

31    The applicant contends that there is a realistic possibility that, had the Minister considered the 26 February email and attachments, he might have exercised his incidental power differently, and that the ultimate exercise of the s 501BA(2) power might have been different. The applicant submits that this possibility is supported by the following:

(a)    The matters advanced by the applicant in the 26 February email and attachments were capable of raising further considerations relevant to the “national interest” state of satisfaction, beyond the non-exhaustive considerations identified by the Minister in paragraph 19 of his reasons.

(b)    The matters advanced by the applicant in the 26 February email and attachments were capable of being relevant to the “expectations of the Australian community”, which was a consideration that the Minister identified as bearing upon the “national interest”. In particular, the matters advanced by the applicant went to his “specific circumstances”, which the Minister clearly considered relevant to the expectations of the Australian community, and thus the national interest: see paragraph 70 of the Minister’s reasons.

(c)    The matters advanced by the applicant in the 26 February email and attachments were capable of raising further considerations generally relevant to the discretion, noting that the Minister at paragraphs 74 and 75 of his reasons did not purport to identify an exhaustive list of considerations.

(d)    The matters advanced in the fourth submission in the 26 February email and the document attached on intergenerational trauma were capable of bearing upon the best interests of the applicant’s children, which was a consideration the Minister thought relevant to the discretion: see paragraphs 76 to 90, and 94 to 96 of the Minister’s reasons. In this regard the applicant notes that his family’s aboriginality was only considered by the Minister as relevant to his ties to the community: see paragraphs 104 and 105 of the Minister’s reasons.

(e)    The matters advanced in the first, second and third submission in the 26 February email (and the UN Report attached) were capable of bearing upon the legal consequences of the decision, which was a consideration the Minister thought relevant to the discretion: see paragraphs 109 to 114 of the Minister’s reasons.

(f)    The matters advanced in the first, second and third submission in the 26 February email (and the UN Report attached) were capable of bearing upon the impediments if removed to Sudan, which was a consideration the Minister thought relevant to the discretion: see paragraphs 115 to 120 of the Minister’s reasons. In this regard the applicant notes that the UN Report attached to the 26 February email was not in evidence before the Tribunal but contained the most up to date information about the situation in Sudan. This information was to the effect that the situation was more than merely volatile (as the Minister recorded) but that Sudan had once again descended into civil war.

32    For these reasons the applicant submits that the Minister’s failure to consider material that was in his constructive possession, and to which he intended to have regard, was a material (and thus jurisdictional) error.

Determination

33    Notwithstanding the applicant’s submissions in this regard, I am not persuaded that ground 1 discloses jurisdictional error on the part of the Minister.

34    To begin with, I record that the Minister concedes that the material contained in the 26 February email was not put before, or intended to be put before, the then Minister. Nonetheless, insofar as the applicant submits that the Minister’s solicitor responded to the 26 February email that the submissions and evidence “would be provided to the Minister for consideration”, I accept that this is not so. As the Minister submits, the AGS responded to the 26 February email by saying: “we will provide your request to our client for consideration…”. I accept that this conveys no more than that the material contained in the 26 February email would be provided to the Department of Home Affairs (that being “the client”), not the Minister himself.

35    Also, and as the Minister further submits, I accept that given the timing and context of the AGS’s response to the 26 February email, and the fact that the email communications related to the Tribunal proceedings and preceded the Tribunal’s decision of 10 May 2024, the reference to the “client” can only have been intended to be a reference to “the Department”. There having been no decision of the Tribunal made at the relevant time, it could not have been in contemplation that the Minister would exercise his personal powers under s 501BA of the Act and, indeed, the precondition in s 501BA(1) to the exercise of the statutory power in
s 501BA(2) in the absence of a Tribunal decision had not yet been enlivened.

36    It follows that to the extent that the applicant relies on the conduct of the AGS in providing the applicant with an expectation that the Minister himself would be provided with the material contained in the 26 February email for his consideration in respect of the s 501BA(2) decision, that inference is not able to be drawn.

37    It is also significant, as the Minister submits, that there is no evidence that the material contained in the 26 February email was even put before the Tribunal. The relevant email correspondence in the affidavit of the applicant’s solicitor affirmed 16 April 2025 discloses no more than that the applicant provided the 26 February email to the AGS who was acting on behalf of the Minister in the proceedings in the Tribunal.

38    The Minister submits and I accept that the last material put before the Tribunal by the applicant appears to be the written closing submissions dated 23 April 2024. No mention is made in those submissions of the contents of the 26 February email. The applicant’s closing submissions noted the applicant’s continued reliance on his Statement of Facts, Issues and Contentions dated 9 February 2024, and his supplementary submissions addressing his claim that he is an Aboriginal Australian dated 24 July 2023. The applicant also filed a reply bundle which does not contain the 26 February email.

39    As the Minister observes, the 26 February email included the following submission:

Firstly, Sudan is currently in a civil war and publicly available information confirms that thousands of innocent civilians have been killed and millions of others displaced. In the circumstances, it is highly unlikely that your client will forcefully return the Applicant to his death to Sudan (UN Report Attached);

40    The Minister notes that in the then Minister’s reasons for decision (at [113]) it was acknowledged, with reference to the Tribunal’s reasons dated 10 May 2024, that the Tribunal’s decision states that the applicant had, before the Tribunal, raised non-refoulement obligation claims. However, the Tribunal also acknowledged that the applicant had sought review in the Tribunal (and pursued subsequent appeals) in respect of the protection visa and that the Tribunal had not been satisfied that the applicant was a person to whom Australia owed protection obligations. Relevantly, at [113] of his reasons, the then Minister also referred to the Tribunal having stated that the protection visa process was designed to allow for a detailed consideration of non-refoulement claims and that the applicant:

… had, before the AAT in relation to its 2024 decision, claimed that the circumstances in Sudan had materially changed since the AAT’s decision regarding the protection visa application, and that [the applicant] would take the AAT to specific documents which demonstrated that, but never did so… Accordingly, in its 2024 decision the AAT was not satisfied that non-refoulement obligations were ordered [sic] to [the applicant] on the evidence before it.

41    As the Minister submits, this reference in the Tribunal’s reasons, as referred to in the then Minister’s reasons, further supports the inference that the 26 February email, including but not limited to the UN Report, was not before the Tribunal when it made its decision.

42    I am therefore satisfied that it should be inferred that the Tribunal was never provided with the material contained in the 26 February email and this was the reason that the then Minister was not briefed with the material when he was considering his decision under s 501BA(2) of the Act.

43    I therefore accept the Minister’s submission that the 26 February email was no more than correspondence passing between the applicant and the AGS prior to the hearing in the Tribunal, in the context of inviting the then Minister to concede the matter.

44    Further, I accept the Minister’s submission that there was no obligation for the Minister to consider the material. Although at paragraph 12 of the then Minister’s reasons he notes that he has given consideration to information given by the applicant in relation to the original request for revocation and the Tribunal proceedings which resulted in the Tribunal revoking the decision to cancel the applicant’s visa, for the reasons given these materials cannot be taken to include the material contained in the 26 February email. As the Minister submits, in circumstances where the materials were not provided to the Tribunal they cannot be regarded as “information given by [the applicant] in relation to… the AAT proceeding which resulted in the AAT… revoking the decision to cancel [the applicant’s] visa”.

45    Having regard to my acceptance of the Minister’s submission that the 26 February email was never provided by the applicant to the Tribunal (nor to the Minister), it follows that ground 1 must fail.

46    It is important to observe also, however, that the Minister is correct to submit that no jurisdictional error (however characterised) could properly be said to have arisen by reason of the fact that the then Minister did not consider the material contained in the 26 February email to the AGS. I accept the Minister’s submission that, to the extent that the applicant’s argument is framed as an unreasonable exercise of discretion in respect of the then Minister’s decision not to afford the applicant procedural fairness by inviting the applicant to advance further submissions and evidence, this ground could not be made out. Section 501BA(3) of the Act explicitly states that the rules of natural justice do not apply to a decision under s 501BA(2) of the Act. As the Minister submits, his decision is not conditioned by any requirement to afford the applicant an opportunity to be heard: see Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [22]-[23] (White, Perry and Charlesworth JJ); and Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 at [17] (Mortimer J) and [37] (Bromwich J) (Tereva).

47    And in any event, as the Minister also submits, the applicant cannot establish that the then Minister acted unreasonably in proceeding to determine that the cancellation of his visa was in the national interest without affording him the opportunity to be heard, simply by reason of the Minister not having been provided with the materials in the 26 February email: see Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156 at [30], [51], [61]-[62] (Derrington and Hespe JJ) (Palmer). Whatever be the significance of the views expressed by Feutrill J in Palmer at [191] having regard to the decision of the majority, the particular circumstances contemplated by his Honour do not exist in this case.

48    It follows, as the Minister submits, that the applicant cannot establish that any jurisdictional error could arise even had there been some constructive knowledge on the part of the Minister in relation to the materials in the 26 February email and even if the Minister had indicated that the material would be considered which, properly understood, he did not.

GROUND 2 – ALLEGED REASONING AS IF POWER WAS ONLY A CANCELLATION POWER

49    Ground 2 of the originating application is in the following terms:

The Minister erred jurisdictionally by reasoning as if the power in s 501BA(2) was, and was only, a power to cancel a visa.

Particulars

(i)    Once the Minister was satisfied of the matters in s 501BA(2)(a) and (b), s 501BA(2) conferred on him a discretionary power to do two things at once: (1) set aside a decision to revoke the cancellation of the Applicant’s visa; and (2) cancel the visa.

(ii)    In bringing matters to bear on the exercise of his discretionary power in s 501BA(2), the Minister reasoned as if the power was, and was only, a power to cancel a visa:

a.    see, in particular, the use of the word 'cancel' or 'cancellation' at paragraphs 74, 76, 90, 94, 95, 96, 102, 108, 121, 123, 124, 128 and 130 of the Minister’s reasons;

b.    see also the reliance on the ‘national interest’ reasoning (which pertained only to cancellation) at paragraphs 75, 125 and 130 of the Minister’s reasons;

(iii)    The error was material.

The applicant’s submissions

50    The applicant submits in support of ground 2 that close attention must be given to the nature of the power in s 501BA(2) of the Act. It is submitted that the Minister’s reasoning was not referrable to a proper understanding of the power.

51    The applicant submits, uncontroversially, that what has been described as the “god-like” power in s 501BA(2) of the Act has two aspects. It empowers the Minister to both set aside a delegate or Tribunal decision favourable to a person, and to cancel the person’s visa.

52    The applicant submits as to the first aspect of the power that this is what distinguishes it from the paradigm personal power in this field, the power in s 501(3) of the Act personally to cancel a visa without affording natural justice. While the power in s 501(3) is also said to be “god-like”, the applicant submits that s 501BA(2) confers even greater power insofar as it allows the Minister, at the end of a lengthy and important administrative process designed by Parliament to produce the correct or preferable decision, to reverse the outcome of that process and set aside the decision, referring to Minister for Home Affairs v Brown (2020) 275 FCR 188 at [32]–[34] (Allsop CJ, Kenny and Banks-Smith JJ) and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]–[142] (Kiefel J), citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 421-432 (Bowen CJ and Deane J), at 429-430 (Smithers J). The applicant submits that the language of “set aside” is apt in that when it is applied to a Tribunal decision it demonstrates that the Minister is personally exercising a power that is usually reserved for Chapter III courts, and usually only available when it is established that the earlier decision was affected by error (on appeal) or jurisdictional error (on judicial review). The applicant submits that, by contrast, the power to set aside in s 501BA(2) is not conditioned on the Minister being satisfied of any error (let alone jurisdictional error) in the original decision: see CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [34] (Owens J). The applicant submits that the availability of judicial review (including expedited judicial review) if the Minister considered the original decision to be beyond jurisdiction, means that Parliament must have understood s 501BA(2) to operate in the ordinary course to set aside decisions that were within jurisdiction.

53    The applicant submits as to the second aspect of the power that it is notable that it does not involve the Minister setting aside the delegate’s or the Tribunal’s decision so as to leave in effect the original cancellation decision. Rather, it is said, the power in s 501BA(2) to “cancel a visa granted to a person” allows the Minister to make a new cancellation decision, the effect of which is to “override” the entire administrative process that has preceded it: see Tereva at [14] and Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 at [110] (Colvin J).

54    The applicant submits that in both its aspects the power in s 501BA(2) of the Act is intended to be the “end of the line” in the administrative decision making continuum, and that this is made clear by s 501BA(5) of the Act, which precludes merits review. The Explanatory Memorandum to the Amending Act explains that this is “in recognition of the fact that the government is ultimately responsible for ensuring that decisions reflect community standards and expectations” (see at [86]).

55    Against this background the applicant complains that the Minister reasoned “as if the power had only one dimension”.

56    In this regard the applicant submits that the Minister was subject to a statutory obligation to provide reasons for the decision pursuant to s 501G(1)(e) of the Act. In the absence of merits review, it is said, the obligation to provide reasons is the last bastion of accountability and, accordingly, the reasons are to be held to an appropriately high standard: DQM18 v Minister for Home Affairs (2020) 278 FCR 529 at [31] (Bromberg and Mortimer JJ) (DQM18 v Minister for Home Affairs) citing Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Although the applicant accepts that the reasons for an administrative decision are not to be read with an eye too keenly attuned for error, he submits that reasons must always be read on the assumption that they accurately reflect the reasoning process, referring to Ballas v Department of Education (2020) 102 NSWLR 783 at [79]–[80] (Bell P and Payne JA) and SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J) and Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47] (Hamill J).

57    It is the applicant’s contention that the Minister’s reasons reveal that, after reaching a state of satisfaction about the character test and the national interest, his consideration of whether to exercise the discretionary power conferred by s 501BA(2) of the Act proceeded upon the basis that it was, and was only, a power to cancel the visa. That is said to be apparent from:

(a)    the use of the word “cancel” or “cancellation” at paragraphs 74, 76, 90, 94, 95, 96, 102, 108, 121, 123, 124, 128 and 130 of the Minister’s reasons; and

(b)    the adoption of the “national interest” reasoning (which went only to cancellation, not to setting aside: s 501BA(2)(b)) in the discretionary consideration at paragraphs 75, 125 and 130 of the Minister’s reasons.

58    In other words, the applicant submits, the Minister’s approach to the s 501BA(2) discretion was to treat it as if, like s 501(3) of the Act, it involved only a power to cancel, rather than also entailing the more “draconian” power to set aside a favourable decision secured by the applicant after his participation in a long and arduous administrative process (as to which see Tereva at [14]).

59    The applicant submits that the Minister’s approach in this regard is consistent with the brief provided to him, which relevantly included the headings “Cancellation in national interest without natural justice” and “Consideration of whether to cancel the visa”.

60    It is said to be no answer to this ground to note that, at the commencement and conclusion of the reasons, the Minister correctly referred to the power as one to cancel and set aside: see paragraphs 2, 9 and 131 of the Minister’s reasons. The complaint made by this ground is as to the reasoning process, the reasons enabling a supervising court to see how the decision maker conceived her or his statutory task: see DQM18 v Minister for Home Affairs at [28]–[32], quoting Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [63] (Mortimer J).

61    The applicant submits that another way of conceiving of this ground is as a complaint that the Minister failed to consider that a consequence of setting aside the Tribunal’s decision and cancelling the applicant’s humanitarian visa was “to deprive the Applicant of the fruits of his four years of pursuing merits and judicial review of the original cancellation decision”.

62    The error is said to be material because had the Minister considered matters by reference to the true nature of the power, there is a realistic possibility the discretion would have been exercised differently if the error had not occurred: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing at [38]).

Determination

63    I do not accept that the Minister committed jurisdictional error by reasoning as if the power in s 501BA(2) was, and was only, a power to cancel a visa. I accept the Minister’s submission that the decision and reasons clearly show otherwise.

64    First, the Minister is correct to submit that paragraph (d) of the decision made by the Minister expressly states that, having been satisfied that the applicant does not pass the character test, and that it is in the national interest to cancel his visa, the Minister decided to exercise his discretion under s 501BA of the Act to “set aside the decision of the Tribunal dated 10 May 2024” as well as to “cancel [the applicant’s] Global Special Humanitarian (Class XB) (subclass 202) visa”.

65    Similarly, it is also the case, as the Minister submits, that at paragraph [2] of the Minister’s reasons there is an express reference to the Minister’s decision under s 501BA of the Act having set aside the Tribunal’s decision as well as cancelling the visa held by the applicant.

66    Further, the Minister is correct to submit that in both paragraphs [9] and [131] of the Minister’s reasons the Minister describes his exercise of power under s 501BA of the Act as being to both set aside the decision of the Tribunal and to cancel the applicant’s visa.

67    Insofar as particulars (ii)(a) and (b) of the applicant’s ground 2 specifically seek to ground his argument upon the Minister’s “use of the word cancel or cancellation” at paragraphs 74, 76, 90, 94, 95, 96, 102, 108, 121, 123, 124, 128 and 130 of the Minister’s reasons and “the reliance on the ‘national interest’ reasoning” at paragraphs 75, 125 and 130, and the applicant’s criticism of the latter, in particular ground 2 (ii)(b), apparently that “national interest” “pertained only to cancellation”, I do not accept these criticisms.

68    As the Minister submits, s 501BA(2) of the Act makes the power conferred by its chapeau (“may set aside the original decision and cancel a visa that has been granted to a person”) conditional upon the Minister being satisfied as to the matters set out in both of the following sub-paragraphs (a) and (b), noting that (b) requires the Minister to be “satisfied that the cancellation is in the national interest”. The sub-section does not allow the Minister to set aside a Tribunal decision where the conditions in sub-paragraphs (a) and (b) of s 501BA(2) are not fulfilled. I accept the Minister’s submission that given the text of s 501 of the Act, each of the paragraphs of the Minister’s reasons is unexceptional and none show any misunderstanding of the provision. I thus accept that what sub-section (b) envisages as being in the “national interest” to activate the power it confers is the cancellation of the applicant’s visa. As the Minister submits, the power conferred by s 501BA(2) of the Act cannot be exercised unless the Minister is satisfied that cancellation of the applicant’s visa is in the national interest. I accept that the paragraphs of the Minister’s reasons relied upon in the particulars to ground 2 show that the Minister was appropriately satisfied.

69    I also accept the Minister’s submission that there is no suggestion (nor could there be) that the Minister was not entitled to find as he did that it was in the national interest to cancel the applicant’s visa: see paragraphs [16]-[18], [19]-[20], [66], [70]-[74], [122], and [130] of the Minister’s reasons.

70    Further, I accept the Minister’s submission that the fact that his decision to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA(2) of the Act had the effect of depriving the applicant of “the fruits of his four years of pursuing merits and judicial review of the original cancellation decision”, was not a mandatory relevant consideration. As the Minister submits, in any event, the then Minister’s reasons further demonstrate that he was acutely aware of the history of the proceedings, including that the applicant had undergone two merits review processes (the second being successful) in the Tribunal and a successful appeal to this court (see the then Minister’s reasons at [6]-[8]). The Minister nonetheless considered that cancellation of the applicant’s visa was in the national interest.

71    I observe, finally, that the applicant’s complaint which finds expression in ground 2 might represent close to the paradigm case of reading the reasons of a decision maker minutely and finely with an eye keenly attuned to the perception of error, rather than as a whole (as to which see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)).

72    Ground 2 must fail for these reasons.

CONCLUSION

73    The applicant’s grounds of appeal having failed the originating application will be dismissed with costs.

Associate:

Dated:    8 August 2025