Federal Court of Australia

Smith v Minister for Immigration and Multicultural Affairs [2025] FCA 952

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended application for review of a migration decision be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    Mr Hayden Smith is a citizen of New Zealand. He has resided in Australia for many years as the holder of a visa. In September 2022, that visa was cancelled by a delegate of the Minister administering the Migration Act 1958 (Cth) following Mr Smith’s conviction of a serious offence and subsequent imprisonment. Mr Smith made representations to the Minister concerning the revocation of the cancellation of his visa, but a delegate of the Minister refused that request. Mr Smith’s subsequent application for a review of that decision by the Administrative Appeals Tribunal was, however, successful and the cancellation of his visa was revoked. Unfortunately for Mr Smith, that successful outcome was short lived. On 9 June 2024, the Minister decided to cancel Mr Smith’s visa pursuant to s 501BA of the Act on the basis that it was in the national interest to do so. It is that decision that is the subject of this proceeding. Mr Smith sought judicial review of the Minister’s decision pursuant to s 476A of the Act on the basis that it was infected by jurisdictional error.

2    For the reasons that follow, Mr Smith failed to demonstrate that the Minister’s decision was infected by any jurisdictional error. His application must therefore be dismissed.

THE STATUTORY FRAMEWORK

3    As will be seen, the grounds of Mr Smith’s challenge to the Minister’s decision were fairly narrow. It is accordingly unnecessary to give any detailed consideration to the relevant statutory scheme in relation to visa cancellations and the revocation thereof.

4    Subsection 501(3A) of the Act provides that the Minister must cancel a person’s visa if the Minister is satisfied that the person does not pass the “character test” in certain specified respects and the person is serving a sentence of imprisonment on a full-time basis. The character test is defined in s 501(6) of the Act. There was, and is, no dispute that Mr Smith failed the character test. He had been sentenced to a term of imprisonment of 12 months or greater: see s 501(6)(a) and (7)(c) of the Act. He was also serving a prison sentence at the relevant time.

5    Section 501CA of the Act provides for the revocation of visa cancellation decisions made pursuant to s 501(3A) of the Act. Relevantly, the Minister may revoke such a cancellation decision if the person whose visa was cancelled makes representations about revocation of the cancellation decision and the Minister is satisfied either that the person passes the character test or there is “another reason” why the decision should be revoked: s 501CA(4) of the Act.

6    Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act in respect of the performance of those functions or the exercise of those powers. A person or body must comply with any such directions: s 499(2A). The Minister, however, is not required to comply with the direction when making a decision personally. At the time of the Tribunal’s decision in Mr Smith’s case, there was such a direction: Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 23 January 2023.

7    Direction No 99 provides a detailed list and discussion of the relevant considerations that a decision-maker must take into account in deciding, relevantly, whether to revoke a visa cancellation. The considerations are generally divided between “primary” and “other” considerations. The primary considerations include: the protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia; the best interests of any minor children in Australia; and the expectations of the Australian community. While the Minister is not required to comply with Direction No 99, the Minister’s decisions frequently refer to the relevant considerations outlined in it.

8    Section 501BA of the Act applies where either a delegate of the Minister or the Tribunal makes a decision under s 501CA to revoke a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501BA(1). Subsection 501BA(2) provides that the Minister has power to set aside a revocation decision by a delegate or the Tribunal and cancel a visa that has been granted to the person if the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) (the person has a substantial criminal record), on the basis of s 501(7)(a), (b) or (c) (the person has been sentenced to death, or life imprisonment, or a term of imprisonment of 12 months or more), or s 501(6)(e) (conviction or finding in respect of sexual offences involving a child), and the Minister is satisfied that the cancellation is in the national interest: s 501BA(2). The rules of natural justice do not apply to an exercise of power under s 501BA(2): see s 501BA(3). The power may only be exercised by the Minister personally: s 501BA(4).

RELEVANT FACTS AND PROCEDURAL HISTORY

9    The relevant facts and procedural history are uncontentious and need only be dealt with briefly.

Cancellation of Mr Smith’s visa

10    Mr Smith arrived in Australia in 2006 when he was 21 years old. He was granted a visa which permitted him to reside in Australia.

11    On 1 September 2022, Mr Smith was convicted in the District Court of New South Wales for the offence of having sexual intercourse with a 15-year-old child. He was sentenced to imprisonment for a term of two years and three months.

12    As a result of his conviction and sentence, Mr Smith had a substantial criminal record as defined in s 501(7)(c) of the Act and did not meet the character test in s 501(6)(a) of the Act. On 8 September 2022, while he was serving the sentence of imprisonment, Mr Smith’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act.

The Minister’s delegate refuses to revoke the cancellation of Mr Smith’s visa

13    Mr Smith was invited to, and subsequently made, representations to the Minister in respect of the revocation of the cancellation of his visa pursuant to s 501CA(4)(a) of the Act.

14    On 18 July 2023, a delegate of the Minister refused to revoke the cancellation of Mr Smith’s visa. It is unnecessary at this stage to give any detailed consideration to the delegate’s reasons. Suffice it to say that the delegate was not satisfied that Mr Smith passed the character test and was not satisfied that there was another reason why the cancellation of Mr Smith’s visa should be revoked. It will, however, be necessary to refer later to some of the delegate’s findings because, as will be seen, when setting aside the Tribunal’s revocation decision, the Minister stated that he preferred the delegate’s findings in respect of some of the primary considerations to the corresponding findings made by the Tribunal.

The Tribunal sets aside the delegate’s decision and revokes the visa cancellation

15    Mr Smith applied to the Tribunal for a review of the delegate’s decision.

16    On 25 September 2023, the Tribunal decided to set aside the delegate’s decision and substituted in its place a decision revoking the cancellation of Mr Smith’s visa. The Tribunal published written reasons for that decision (R) on 27 September 2023.

17    The Tribunal’s reasons for revoking the visa cancellation may be shortly summarised. There was no dispute that Mr Smith did not meet the character test. The only issue for the Tribunal was accordingly whether there was another reason to revoke the cancellation of Mr Smith’s visa.

18    The Tribunal was required to apply Direction No 99. It made the following key findings in respect of the primary and other considerations referred to in Direction No 99.

19    First, in relation to the primary consideration of the protection of the Australian community, the offence for which Mr Smith was convicted was “objectively a very serious offence involving a sexual crime against a child”: R [22]. The consequences of any repeat offending by Mr Smith would be “very serious”: R [24]. The likelihood of Mr Smith reoffending, however, was “low”: R [31]. In those circumstances, this consideration “weigh[ed] firmly against revocation … having regard to it [sic] very serious nature and the harm that would be caused if it were repeated”: R [33].

20    Second, in relation to the primary consideration of Mr Smith’s ties to Australia, Mr Smith had a de facto partner with whom he had a daughter who was two months old at the time he was imprisoned: R [35]. Mr Smith’s de facto partner had three other children who were 15, 9 and 7 years’ old at the time: R [36]. Mr Smith’s de facto partner and children are all Australian citizens and Mr Smith proposed to live with them if allowed to remain in Australia: R [36]. Mr Smith’s parents had resided in Australia since 2003 and are permanent residents: R [37]. Mr Smith had worked for almost all of his 15 years in Australia: R [38]. In the circumstances, given Mr Smith’s “strong familial ties and reasonably long period in Australia positively contributing through employment before his offending, this consideration counts firmly in favour of revoking the decision cancelling the visa”: R [39].

21    Third, in relation to the primary consideration of the best interests of minor children in Australia, there were four children who were “potentially directly affected” by the cancellation of Mr Smith’s visa: R [41]. Mr Smith had not lived with any of those children: R [41]. Nor has he “at any time stood in the position of the children’s [sic] parent on a day-to-day basis”: R [42]. If, however, Mr Smith “stepped into the role of the children’s [sic] father” he would “be likely to play a positive role in each of the children’s [sic] lives”: R [42]. If Mr Smith’s de facto partner and the children followed Mr Smith to New Zealand that “is unlikely to be good for them” and their best interests therefore lay with Mr Smith “remaining in their lives in Australia”: R [42]. The best interests of Mr Smith’s daughter and his de facto’s three children “firmly weigh in favour of revocation of the decision cancelling the visa”: R [44].

22    Fourth, the expectations of the Australian community “should be afforded less weight” and only weighed “moderately in favour of non-revocation” because Mr Smith’s offending was not “premediated” or “part of a pattern of very serious criminal offending of a sexual kind against children” and was committed against a “backdrop” of Mr Smith’s history of alcohol abuse and a depressive disorder: R [48] and [49].

23    Fifth, the “strong countervailing considerations” of Mr Smith’s ties to the community and the best interests of the four minors justified the revocation of Mr Smith’s visa cancellation despite the seriousness of his offending: R [52].

THE MINISTER’S DECISION TO SET ASIDE THE TRIBUNAL’S DECISION

24    On 9 June 2024, the Minister made a decision personally under s 501BA of the Act to set aside the Tribunal’s decision and to cancel Mr Smith’s visa. The Minister provided a Statement of Reasons for that decision (the Minister’s reasons or MR). What follows is a summary of the key elements of the Minister’s reasons.

25    First, the Minister correctly identified that his power under s 501BA of the Act to set aside a decision of the Tribunal which revoked the cancellation of a person’s visa under s 501(3A) of the Act only arose if he was satisfied that: first, the person did not pass the character test because of the operation of s 501(6)(a), on the basis of s 501(7)(a), (b) or (c), or s 501(6)(e); and second, the cancellation of the person’s visa was in the national interest: MR [7].

26    Second, the Minister correctly noted that, while he was not required to apply the rules of natural justice when making a decision under s 501BA(2) of the Act, he was also not prohibited from applying those rules and giving the person an opportunity of being heard before the decision: MR [8]. The Minister chose to proceed without giving Mr Smith an opportunity of being heard before making his decision and noted that he was cognisant that, as a consequence, Mr Smith had not had an opportunity to advance reasons why a decision adverse to him should not be made: MR [9]. The Minister did, however, state that he had considered the information that Mr Smith had given in relation to the original request for revocation as reflected in the Tribunal’s reasons: MR [10].

27    Third, the Minister was satisfied that Mr Smith did not pass the character test because of the operation of s 501(6)(a), on the basis of s 501(7)(c) of the Act: MR [11]-[13]. There is no challenge to that finding. Nor could there be.

28    Fourth, the Minister noted that the High Court had said (in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 at [40]) that “[w]hat is in the national interest is largely a political question” and that this Court had held that “the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction (provided that satisfaction is obtained reasonably)”: MR [16]. The Minister also observed that he considered that “matters of national interest include, amongst other things, the protection of the Australian community and the expectations of the Australian community”: MR [17].

29    Fifth, the Minister concluded that the use of his discretionary power to cancel Mr Smith’s visa was in the national interest: MR [57]. In arriving at that conclusion, the Minister had regard to “the seriousness of Mr [Smith’s] criminal conduct having regard to the circumstances and nature of the conduct, the likelihood of him reoffending, and the risk he poses to the Australian community if such a likelihood eventuated”: MR [18]. Having given detailed consideration to those matters, the Minister summarised his conclusion as follows (at MR [56]):

In the specific case of Mr SMITH which involves sexual offending against a minor, I have considered the nature and seriousness of his conduct and concluded that it is very serious. I have also considered the likelihood of Mr SMITH reoffending and have concluded that it is a low, but not negligible, risk of reoffending in a similar way in the future, noting that the offending was opportunistic in nature, there was an absence of drugs and alcohol in the offending, and it was an unplanned event.

30    Sixth, having determined he was satisfied that it was in the national interest to cancel Mr Smith’s visa, the Minister next considered whether there were any relevant considerations that might support a decision not to cancel Mr Smith’s visa despite his satisfaction that it was in the national interest to do so: MR [58]. In considering the exercise of his discretion, the Minister gave “due weight” to the matters he had considered in arriving at his conclusion in respect of the national interest: MR [59]. He also had regard to the best interests of the minor children who could be affected by the cancellation of Mr Smith’s visa (MR [61]-[68]), Mr Smith’s ties to Australia (MR [69]-[80]), the legal consequences of a decision to cancel the visa (MR [81]-[85]) and the impediments that Mr Smith might face if removed to New Zealand (MR [86]-[92]).

31    Mr Smith’s challenge to the Minister’s decision focussed almost exclusively on the Minister’s reasoning concerning the best interests of the minors who might be affected by the cancellation of Mr Smith’s visa, Mr Smith’s ties to Australia, and the impediments that Mr Smith might face if removed to New Zealand. The following summary of the Minister’s decision and reasons focusses on the Minister’s reasoning in respect of those considerations.

32    In relation to the best interests of minor children, the Minister noted that the minors who could be affected by the cancellation of Mr Smith’s visa were: his biological daughter; his de facto partner’s three children; and his seven nephews who were the children of his two deceased brothers: MR [61].

33    In relation to the best interests of his daughter and the children of his de facto partner, the Minister referred to the delegate’s findings that: Mr Smith had not been involved to any extent in his daughter’s life and had not formed a bond or relationship with his daughter; Mr Smith had also not formed a bond or relationship with his de facto partner’s three children; and those children (Mr Smith’s daughter and his de facto partner’s three children) were unlikely to be deprived of an existing relationship by the removal of Mr Smith: MR [62]. The Minister did note, however, that the delegate had acknowledged that it would be beneficial for Mr Smith’s daughter to be able to receive care and nurture from both biological parents as she develops: MR [62].

34    The Minister also had regard to the Tribunal’s finding in relation to the best interests of Mr Smith’s daughter and noted that the Tribunal had the benefit of statements from Mr Smith and his de facto partner in relation to the best interests of the children: MR [63]. The Minister indicated, however, that he preferred the delegate’s findings in respect of the best interests of Mr Smith’s daughter: MR [64]. The Minister similarly had regard to the Tribunal’s findings in respect of the best interests of Mr Smith’s de facto partner’s children, including that Mr Smith was likely to play a positive role in the lives of each of those children: MR [65].

35    The Minister’s conclusion in respect of the best interests of Mr Smith’s daughter and the children of his de facto partner was as follows (MR [67]-[68]):

I note that Mr SMITH’s de facto partner has been the main care giver for her children and that she has also continued to provide care for their daughter as a single mother and is likely able to continue to do so and acknowledge that should Mr SMITH’s visa be cancelled that it would put a strain on her relationship with Mr SMITH and possibly cause it to end. I have also further taken into [account] the statements from both Mr SMITH and his de facto partner before the AAT and acknowledge their genuine dedication to establishing a ‘stable family life with plenty of opportunities for all of us’…

I do not dispute that it would be in the best interests of Mr SMITH’s biological and his de facto partner’s children should Mr SMITH be able to remain in Australia, but on balance of the evidence and noting the limited role [Mr Smith] has played in the lives of his biological daughter and her siblings, I find that this consideration weighs only moderately against the cancellation of Mr SMITH’s visa.

(Emphasis in original.)

36    The Minister also acknowledged the Tribunal’s finding in respect of the best interests of Mr Smith’s nephews (MR [66]), though that finding does not appear to have featured prominently in the Minister’s reasoning or finding.

37    In relation to Mr Smith’s ties to Australia, the Minister observed that Mr Smith’s de facto partner and her children were “Indigenous Australians”: MR [70]. The Minister acknowledged that the Tribunal had found that, despite the fact that Mr Smith was not living with his daughter, his de facto partner or her children when he was sent to prison, Mr Smith’s “ties to his de facto partner and her other children, and his young daughter has remained reasonably strong”: MR [71]. Taking into account the statements Mr Smith and his de facto partner had submitted to the Tribunal, the Minister accepted that the cancellation of Mr Smith’s visa was “likely to have a significant emotional effect on his de facto partner”: MR [72].

38    The Minister made several other findings concerning Mr Smith’s ties to Australia, however, they are not directly relevant to Mr Smith’s challenge to the Minister’s decision.

39    The Minister also made several findings concerning the impediments that Mr Smith was likely to face if removed to New Zealand. The only finding relevant to Mr Smith’s challenge to the Minister’s decision was the finding that Mr Smith would “suffer initial hardship trying to establish his life in New Zealand while most of his family remains in Australia” and that his hardship would “be exacerbated by the negative impacts that relocation to New Zealand will also have on his partner and child, should they chose to relocate”: MR [90].

REVIEW GROUNDS

40    It should perhaps be noted that Mr Smith required an extension of time in which to file his originating application. The Minister did not oppose that extension of time and it was granted. Mr Smith was also granted leave to file and rely on an amended application.

41    Mr Smith’s amended application contained five grounds of review. Those grounds and the associated particulars were prolix and in some respects difficult to understand. What follows is a short summary of the grounds as ultimately articulated by Mr Smith in his written and oral submissions.

42    Two of Mr Smith’s review grounds (grounds 1 and 3) asserted that the Minister had failed to take into account relevant considerations.

43    Ground 1 was that, in “evaluating the matters subject to his discretion”, the Minister had failed to take into account relevant considerations concerning the best interests of Mr Smith’s children “in relation to their likely relocation to New Zealand and their Aboriginality”. Mr Smith’s argument, in summary, was that statements made by him and his de facto partner that he had provided to the Tribunal referred to three possible relocation scenarios if his visa was cancelled and he was returned to New Zealand: first, Mr Smith’s de facto partner and her daughter with Mr Smith would move to New Zealand to be with Mr Smith; second, Mr Smith’s de facto partner and all four of her children would accompany Mr Smith to New Zealand; and third, Mr Smith’s de facto partner and all four children would remain in Australia. Mr Smith contended that the Minister only considered the third scenario when considering the best interests of the minor children.

44    Ground 3 was that in “evaluating the matters subject to his discretion”, the Minister had failed to take into account relevant considerations concerning the impediments that Mr Smith would face if removed to New Zealand. Those relevant considerations were said to be the difficulties that Mr Smith’s partner and children would face if they relocated with Mr Smith to New Zealand and the extent to which those difficulties would exacerbate Mr Smith’s hardship.

45    Ground 5 in Mr Smith’s amended application was that the Minister’s decision was “affected by jurisdictional error due to it being legally unreasonable, illogical, or irrational”. The particulars to that ground were said to be the same as the particulars to grounds 1 and 3. The oral submissions that were advanced on Mr Smith’s behalf addressed the particulars to grounds 1 and 3 entirely under the rubric of the legal unreasonableness ground in ground 5. Mr Smith effectively abandoned any argument to the effect that the Minister failed to take into account considerations that the Minister was bound to take into account in making his decision and therefore effectively abandoned grounds 1 and 3. The contentions that initially comprised the particulars to grounds 1 and 3 will accordingly only be considered in the context of Mr Smith’s argument that the Minister’s decision was legally unreasonable.

46    Grounds 2 and 4 of Mr Smith’s amended application, although expressed in elaborate and somewhat confusing terms, appeared to collapse into a single contention. That contention was, or at least appeared to be, that the Minister’s finding that he was satisfied that cancellation of Mr Smith’s visa was in the national interest “could not have been lawfully formed” because the Minister failed to have regard to the possibility that Mr Smith’s de facto partner and the minor children would relocate to New Zealand and the implications that would flow from that.

WAS THE MINISTER’S DECISION LEGALLY UNREASONABLE?

47    The relevant principles in relation to legal unreasonableness are well established and need not be considered in detail to resolve the arguments raised by Mr Smith. The applicable principles were not the subject of any detailed consideration in the parties’ submissions.

48    There are generally two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ). The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44].

49    Mr Smith’s arguments in respect of legal unreasonableness fell within the first category of legal unreasonableness. He essentially argued that the Minister’s reasons for exercising his discretion to cancel Mr Smith’s visa, having found that it was in the national interest to do so, were legally unreasonable because the Minister failed to take into account what were said to be relevant considerations. He did not appear to contend that the outcome (the Minister’s decision to cancel his visa) was legally unreasonable, in the sense that it was outside the area of “decisional freedom” within which a decision-maker has a genuinely free discretion, or in the sense that it had the character of a choice that was arbitrary, capricious or without common sense: Li at [28] (French CJ); Singh at [44].

50    Mr Smith also appeared to contend that the Minister’s reasoning disclosed or exhibited legal unreasonableness because the Minister’s failure to take into account what were said to be relevant considerations was illogical or irrational. Illogical or irrational reasoning may support a finding that the resulting decision was legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. Illogicality or irrationality in this context, however, must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124], [129]-[131]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]; see also SZMDS at [96], [131].

51    The question whether a decision is legally unreasonable or not must be approached having regard to the nature of the decision-making power pursuant to which the decision was made. That is because the question of legal unreasonableness is ultimately about the limits of power. It is accordingly necessary to consider the nature of the decision-making power in s 501BA of the Act.

52    The power conferred on the Minister by s 501BA of the Act has been described as “exceptional”: DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63 at [13]; cited with apparent approval by the Full Court in Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at [59]. The exercise of power under s 501BA requires the Minister to be satisfied of two things: first, that the person does not satisfy the character test for one of the specified reasons; and second, that the cancellation of the person’s visa is in the national interest. The concept of the “national interest” is “broad and evaluative”: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [156]-[157]. What is in the national interest is “largely a political question”: Plaintiff S156 at [40]. The section does not specify any particular matter or considerations to which the Minister must have regard to in forming a state of satisfaction concerning the national interest, or in exercising the residual discretion to cancel: Vargas at [61]. Nor does the subject matter, scope and purpose of the provision in question, or the Act in general, provide a basis for implying any mandatory considerations. The Minister is not required to consider material that was before the Tribunal – and, by extension, the delegate – during the revocation process: Vargas at [62].

53    Once regard is had to the nature and scope of the Minister’s power under s 501BA, and the applicable principles in respect of legal unreasonableness are properly understood and applied, it is readily apparent that Mr Smith’s contention that the Minister’s decision in his case was legally unreasonable has no foundation or merit. As outlined earlier, Mr Smith’s contentions in respect of legal unreasonableness are premised on the contention that the Minister was required to consider the three different relocation scenarios that might result from the cancellation of his visa, those three scenarios being: first, his de facto partner and her daughter with Mr Smith (but not the other children) relocating to New Zealand; second, his de facto partner and all of her children relocating to New Zealand; and third, his de facto partner and all the children remaining in Australia. Those three different scenarios may have been apparent from the material that was before the delegate or the Tribunal, however the Minister was not required to consider that material.

54    In any event, the requirement that the Minister’s satisfaction in respect of the national interest and his decision to exercise the discretion to cancel, must be reached reasonably and on logical and rational grounds, did not require the Minister to speculate about what relocation decision Mr Smith’s de facto partner might make if Mr Smith’s visa was cancelled when considering either the best interests of the affected minor children or the impediments that Mr Smith might face if returned to New Zealand. The Minister accepted that it would be in the best interests of all the affected minor children for Mr Smith to remain in Australia but gave that consideration only moderate weight in the balancing exercise for the reasons given: MR [68]. Likewise, the Minister acknowledged that Mr Smith would likely suffer impediments, in the form of hardship, whether his family, or some of his family, remained in Australia or chose to relocate: MR [90]. The requirements of legal reasonableness did not require the Minister to minutely consider each possible scenario, or to form a view as to which was more likely to be the outcome. Nor was the Minister required, in that context, to consider, or make express findings about, the Aboriginality of Mr Smith’s de facto partner and her children.

55    It is, in any event, clear from a fair and balanced reading of the Minister’s reasons, that the Minister gave detailed consideration to the available information in relation to Mr Smith’s family circumstances and the best interests of the children in question. It is, for example, clear that the Minister considered the statements that Mr Smith and his de facto partner had provided to the Tribunal concerning their personal and family circumstances: see MR [67].

56    Mr Smith’s parsing and nit-picking analysis of parts of the Minister’s reasoning also does not assist. For example, his focus on the fact that, when considering potential impediments (at MR [90]), the Minister referred only to the possible relocation of his partner and “child” does not even come close to the sort of illogicality that could give rise to a jurisdictional error. It also does not assist to merely assert that the Minister’s reasons lacked an “evident and intelligible justification”: cf Li at [76]. There is no basis for that assertion, or for any assertion that the outcome of the decision – the cancellation of Mr Smith’s visa – was unreasonable because it lacked any evident and intelligible justification, or because it could be said to be plainly unjust, arbitrary, capricious or without common sense: cf Singh at [44]. Many of Mr Smith’s submissions concerning legal unreasonableness and illogicality also simply concerned the weight that he claimed should have been given to the various considerations, which was a matter for the Minister, or impermissibly transgressed into a challenge to the merits of the decision. Finally, it should be noted that Mr Smith’s reliance on the decision in PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 was misplaced as the facts and circumstances of that case were different to, and distinguishable from, the facts and circumstances of this case.

57    In all the circumstances, Mr Smith failed to demonstrate that the Minister’s decision was legally unreasonable. It should finally be noted, for more abundant caution, that it is not surprising that Mr Smith did not press grounds 1 and 3 and only pursued the particulars of those grounds under the rubric of legal unreasonableness in ground 5. For the reasons already given, it is clear that what were said to be relevant considerations in grounds 1 and 3 and the particulars thereto were not considerations that the Minister was bound or required to consider, either in reaching a state of satisfaction concerning the national interest, or in the exercise of his discretion to cancel Mr Smith’s visa.

THE NATIONAL INTEREST GROUNDS

58    Grounds 2 and 4 of Mr Smith’s application may be dealt with briefly.

59    Mr Smith’s primary argument, at least as I understood it, was that in reaching a state of satisfaction that it was in the national interest to cancel Mr Smith’s visa, the Minister had regard to those considerations to which he had regard in considering whether to exercise his discretion, including the best interests of the minors who might be affected by the cancellation and the impediments that Mr Smith might face if returned to New Zealand. That construction of the Minister’s decisions was said to be supported by the Minister’s statement (at MR [57]) that he had concluded that the use of his “discretionary power to cancel Mr [Smith’s] … visa is in the national interest”. Mr Smith contended that, if the Minister’s decision is construed in that way, the Minister’s state of satisfaction concerning the national interest was not “lawfully formed” because it was infected by the same errors that were the subject of ground 5 (or grounds 1 and 3) and the particulars thereto.

60    That argument must fail for at least two reasons.

61    First, while the Minister’s statement at [57] of his reasons is somewhat ambiguous, a fair reading of the reasons as a whole indicates that the Minister approached his decisional task by first considering (at MR [14]-[57]) whether he was satisfied that it was in the national interest to cancel Mr Smith’s visa and, having concluded that he was so satisfied, then considering whether he should exercise his discretion to cancel Mr Smith’s visa (at MR [58]-[103]). That approach to the exercise of the power in s 501BA(2) of the Act was consistent with authority: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAFC 195 at [93]-[108] (Besanko J, with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed at [1], [20], [176], [181]). Mr Smith did not contend otherwise.

62    If the Minister’s decision is construed in that way, it follows that, when considering whether he was satisfied that the cancellation of Mr Smith’s visa was in the national interest, the Minister did not have regard to the considerations relating to the best interests of minor children and the impediments that Mr Smith might face if returned to New Zealand. It follows that his state of satisfaction that cancellation was in the national interest could not have been infected by the errors that were the subject of ground 5 (or grounds 1 and 3) and the particulars thereto. It should also perhaps be added that, for the reasons that have essentially already been given, the Minister was not required to have regard to those considerations – the best interests of minor children and the impediments that Mr Smith might face if his visa was cancelled – in considering whether he was satisfied that it was in the national interest to cancel Mr Smith’s visa.

63    Second, even if the Minister’s reasons could be construed as indicating that he did have regard to those considerations – the best interests of minor children and the impediments that Mr Smith might face if his visa was cancelled – in considering whether he was satisfied that it was in the national interest to cancel Mr Smith’s visa, for the reasons already given (in the context of ground 5), the Minister’s reasoning and findings in respect of those considerations was not infected with any error. The Minister did not, as contended by Mr Smith, fail to “properly” consider the best interests of the minor children or the impediments that Mr Smith might face if returned to New Zealand.

64    It follows that, either way, Mr Smith failed to make out grounds 2 and 4 of his amended application.

CONCLUSION AND DISPOSITION

65    Mr Smith failed to make out any of his grounds of challenge to the Minister’s decision, pursuant to s 501BA(2) of the Act, to cancel Mr Smith’s visa. That decision was not legally unreasonable or otherwise infected by jurisdictional error. Mr Smith’s application must accordingly be dismissed with costs.

Associate:

Dated:    14 August 2025