Federal Court of Australia

SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 17 June 2025 be set aside.

2.    The respondent pay the costs of the applicant as agreed, taxed or otherwise assessed.

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

REASONS FOR JUDGMENT

PERRAM J

1    The applicant applies to set aside a decision of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his Refugee (Class XB Subclass 200) visa.

2    The applicant is a non-citizen. He arrived in Australia from South Sudan in 2007 and was granted a refugee visa. On 13 February 2020 he was convicted at the Goulburn District Court of three counts of Aggravated Sexual Assault – Victim with Cognitive Impairment and sentenced to a term of imprisonment for six years.

3    It is uncontroversial that the imposition of that sentence meant that the applicant failed the character test prescribed by s 501(6) of the Migration Act 1958 (Cth). Where the Minister or his or her delegate forms the view that a visa holder fails the character test on the basis of paragraph (6)(a) which relates to a ‘substantial criminal record’, the effect of s 501(3A) is that the visa is automatically cancelled without the taking of any further administrative step. On 7‍ May‍ 2020, a delegate of the Minister formed the view that the applicant failed the character test and his visa was therefore automatically cancelled. As a non-citizen without a visa he then became an unlawful non-citizen: s 14. As such, he was taken into immigration detention: s ‍189.

4    Provision is made for a person whose visa is automatically cancelled in this fashion to apply for its reinstatement which the applicant in due course did. A delegate of the Minister refused that application. The applicant then successfully applied to the Administrative Appeals Tribunal (‘Tribunal’) for a review of that decision which reinstated his refugee visa.

5    Where the Tribunal or a delegate makes a decision to revoke the cancellation of a visa in this way, the Minister has a personal discretionary power to override that decision if the Minister is satisfied that the person does not pass the character test on the basis of specific paragraphs of s 501(6) and forms the view that cancellation of the visa would be in the national interest: s‍ 501BA. On 17 June 2024, the Minister exercised this override power and once again cancelled the applicant’s visa. The Minister gave reasons for the decision. These disclose that the power was exercised because:

(a)    the Minister was satisfied of the uncontroversial fact that the applicant failed the character test (s 501BA(2)(a));

(b)    the Minister was satisfied that the cancellation was in the national interest which enlivened a discretionary power to cancel the visa (s 501BA(2)(b)); and

(c)    the Minister thought that that power should be exercised by cancelling the applicant’s visa.

6    The applicant now seeks judicial review of that exercise of power on the grounds that it was illogical, irrational and/or legally unreasonable. The Court’s jurisdiction to grant relief of this kind derives from the Judiciary Act 1903 (Cth) s 39B. Relief under s 39B will be available where the Minister’s decision was made in circumstances which disclose a jurisdictional error.

7    The ground of legal unreasonableness is an established category of jurisdictional error. It will be made out where the decision is so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could reach: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [34] per Allsop CJ, Besanko and O’Callaghan JJ.

8    The applicant’s legal unreasonableness challenge is focussed on the Minister’s assessment of the national interest. Although not without limits, what constitutes the national interest is principally a political question for the Minister: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 at [18] per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ.

9    Returning to the Minister’s reasons for decision, the Minister assessed the national interest from two different perspectives:

(a)    the need to protect the community ([17]-[49]); and

(b)    the expectations of the Australian community ([50]-[54]).

10    Having considered both he concluded that the cancellation of the applicant’s visa was in the national interest ([55]-[57]). It is not suggested that this was an erroneous approach to the assessment of the national interest.

11    Having concluded that the cancellation of the applicant’s visa was in the national interest, the Minister then proceeded to consider how the discretion thus arising should be exercised (from [58] onwards). The Minister considered a number of disparate topics including an assessment of the best interests of any minor children ([60]-[61]), the applicant’s ties to Australia ([62]-[66]), the legal consequences of the decision ([67]-[75]) and the impediments that the applicant would face if he were removed to South Sudan ([76]-[79]). It is not suggested that this approach was in itself erroneous.

12    At [80]-[88] the Minister concluded that these various matters favoured the exercise of the power of cancellation. At [89] the Minister gave effect to this conclusion and decided to set aside the Tribunal’s decision and once again to cancel the applicant’s visa.

13    A complexity in this case is that the applicant is a member of the cohort of persons to whom the High Court’s decision in NZYQ v Minister for Immigration and Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (‘NZYQ’) applies. In this Court, it is accepted by the Minister that:

(a)    the applicant cannot be removed to Sudan because of Australia’s non-refoulement obligations;

(b)    there is presently no other country which is willing to receive him; and

(c)    there is no real prospect of the applicant being removed from Australia in the reasonably foreseeable future.

14    The effect of NZYQ is that even without a visa the applicant cannot be held in immigration detention for constitutional reasons. Thus, whilst s 189 appears to authorise the detention of the applicant as an unlawful non-citizen, NZYQ establishes that its operation is currently invalid in relation to him. The applicant therefore remains at large in the community and there is no prospect that the cancellation of his visa will result in him being detained in immigration detention.

15    There is an obscurity in the Minister’s reasons. When considering what the legal consequences of the cancellation decision would be if the applicant’s visa was cancelled the Minister accepted that he was a member of the NZYQ cohort and that he would remain in the community even if the visa was cancelled (‘I am aware that if a cancellation decision is made under s 501BA, [the applicant] will not be taken into detention. He will continue to reside in the community’: [74]).

16    On the other hand, when assessing the need to protect the community at [17]-[49] the Minister proceeded on the assumption that the effect of any decision to cancel the visa would be that he no longer posed a threat to the community (‘… I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest’: [49]).

17    The Minister’s reasons do not explain why it is that the cancellation of the applicant’s visa would protect the Australian community from the possibility of his further criminal behaviour. Rather than explaining why this protective effect arose, the Minister’s reasons merely assume that there was such a protective effect. The presence of this unexplained assumption appears at a number of junctures in the Minister’s reasons. A good example is afforded by [49] (which is the Minister’s conclusion on the protection of the community) and [56] (which is the Minister’s conclusions on the expectations of the community):

49.    Considering the nature and seriousness of Mr [REDACTED] conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr [REDACTED] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.

...

56.    In the specific case of Mr [REDACTED] I have found his offending to be very serious, especially due to the nature of the sexual and violent offences he has committed in Australia. I also consider that the Australian community does not generally expect a person who has been convicted of these offences to be able to continue to hold a visa and remain in the Australian community.

18    Whilst I would characterise the Minister’s approach to this issue as involving an unstated assumption, the applicant submits that it is to be inferred that the Minister reasoned that the cancellation of the applicant’s visa would result in him being taken into immigration detention and that this was devoid of any rationality where the effect of NZYQ was that he could not be taken into immigration detention.

19    I do not accept this submission. The Minister’s reasons must be construed as a whole and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Where the Minister expressly acknowledged at [73]-[74] that the applicant was a member of the NZYQ cohort and would continue to reside in the community even if his visa were cancelled, it is difficult to infer that he also found that the applicant would be taken into immigration detention if his visa were cancelled. To accept that would be to accept that the Minister’s thought patterns were disordered. I would not lightly reach such a conclusion.

20    However, this does not mean that the applicant’s challenge fails. The Minister’s process of reasoning depends for its efficacy upon the unstated assumption that the effect of the visa cancellation was that the community would be protected from the applicant’s criminal behaviour and that its expectations in that regard would be met. From the Minister’s reasons it is impossible to discern why the Minister thought that cancelling the applicant’s visa would have any impact on the protection of the community when, as the Minister accepted, NZYQ meant that the applicant would remain at large even if his visa was cancelled.

21    As such the decision lacks an intelligible justification. The Minister denied that this was so submitting (at [24]) that:

… There was an intelligible justification for the Minister’s reasoning concerning the national interest (specifically, the protection, and expectations of, the Australian community) in circumstances where the Minister identified that the applicant had engaged in very serious offending, and there was a “medium to high” risk that the applicant would reoffend ([48]).

22    This submission exhibits the same problem that the Minister’s reasons themselves exhibit, namely, a failure to identify what the significance of the medium to high risk of reoffending could be where the applicant would remain in the community by reason of NZYQ.

23    In his submissions for the Minister, Mr Johnson of counsel gestured at alternate ways the Minister might have arrived at the decision in a rational fashion by drawing to my attention this Court’s decisions in JNMQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1375 (‘JNMQ’) per Jackman J and XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (‘XKTK’) per Halley J. In those cases, rationality challenges to cancellation decisions relating to members of the NZYQ cohort failed. However, in both cases the Minister had adopted a different approach to the assessment of national interest than he has in this case. In particular, it is apparent that the Minister in those cases did what the Minister has not done in this case; i.e. identify why the cancellation of the visa protected the Australian community despite NZYQ. In both cases, the Minister reasoned that the cancellation of the visa would prevent the former visa holder from heading down a path which might ultimately lead to citizenship.

24    The Minister’s reasons in this case disclose no such reasoning. As a matter of fact, it is not open on the evidence (i.e. the Minister’s reasons) to infer that the reasoning in JNMQ and XKTK was used by the Minister in this case. ‘[W]here there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was’: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ. Consequently, a ‘court exercising judicial review jurisdiction is not ... entitled to replace a primary decision-maker’s reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision-maker’: Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513 at [35] per Griffith J, Gleeson J agreeing at [58], cf. Colvin J at [91]; see also DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [108] per Beach, O’Callaghan and Anastassiou JJ.

25    In that circumstance, the applicant’s rationality challenge should succeed.

26    There are two final matters. First, the applicant did not submit that the Minister’s reasons were inadequate because they did not sufficiently disclose the Minister’s actual process of reasoning (cf. Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60; 297 FCR 39 at [100]-[101] per Perry, Meagher and Kennett JJ). It is not necessary therefore to consider the circumstances in which inadequate reasons of that kind may result in jurisdictional error. Nor did the applicant submit the Minister had no reason of any kind for the cancellation decision in the sense discussed by Gibbs CJ in Public Service Board v Osmond [1986] HCA 7; 159 CLR 656 at 663 (‘indeed, if the decision maker does not give any reason for his decision, the court may be able to infer that he had no good reason’).

27    Secondly, it is not strictly necessary to deal with the applicant’s contention that the Minister failed to take into account the legal consequences of the cancellation decision. The applicant submitted that the legal consequences of the Minister’s decision were that he would be granted a Class WR Bridging R (Subclass 070) visa and that the Minister had not addressed this. I accept that the Minister was bound to take into account the legal consequences of the decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [9]-[10] per Allsop CJ and Katzmann J and at [177] per Buchanan J. However, I do not accept that the legal consequence of the cancellation was that he would be granted a Class WR Bridging R (Subclass 070) visa. Regulation 2.25AA(2) of the Migration Regulations 1994 (Cth) conferred on the Minister a power to grant the applicant such a visa but it was not a legal consequence of the cancellation of visa that the Minister might then exercise that power.

28    The Minister’s decision should be quashed. Since the power was exercised on the Minister’s own motion, there is no obligation on the Minister to consider re-exercising the power and therefore no occasion to grant mandamus to command the reperformance of any duty. Whether the Minister does so will be a matter for the Minister.

29    I make the following orders:

(a)    The decision of the respondent made on 17 June 2025 be set aside.

(b)    The respondent pay the costs of the applicant as agreed, taxed or otherwise assessed.

Associate:

Dated:    15 August 2025