Federal Court of Australia

KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision made on 14 June 2024 setting aside the decision of the Administrative Appeals Tribunal dated 13 July 2023 and cancelling the applicant’s visa pursuant to s 501BA of the Migration Act 1958 (Cth) (the cancellation decision) be set aside.

2.    The respondent be restrained from giving effect to the cancellation decision.

3.    The respondent pay the applicant’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    The applicant, who has been assigned the pseudonym KFTJ for the purposes of these proceedings, is a citizen of Iran who arrived in Australia in 2011 and was granted a protection visa in 2012. That protection visa was mandatorily cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) on 11 June 2019 following the applicant’s conviction and sentence of imprisonment for various offences. A delegate of the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, declined to revoke that cancellation. On 13 July 2023, however, the Administrative Appeals Tribunal set aside the delegate’s decision and substituted for it a decision to revoke the cancellation. Unfortunately for the applicant, that was not the end of the matter. On 14 June 2024, the Minister, having satisfied himself that it was in the national interest to do so, set aside the Tribunal’s decision and cancelled the applicant’s visa pursuant to s 501BA of the Act. In this proceeding, the applicant applied for an extension of time in which to seek judicial review of the Minister’s cancellation decision under s 501BA of the Act.

2    It is unnecessary to dwell on the application for an extension of time. The applicant’s application was filed about one month out of time and the Minister fairly conceded that he would not suffer any prejudice resulting from that delay. It was also apparent that the applicant’s proposed grounds of review were at least reasonably arguable. It was and is accordingly appropriate to grant an extension of time and focus on the substance of the applicant’s challenge to the Minister’s decision. As will be seen, the applicant contended that the Minister’s decision was not a valid exercise of his power under s 501BA of the Act because it was legally unreasonable, in particular because the Minister’s state of satisfaction that it was in the national interest to cancel the applicant’s visa was formed in a way that was irrational, illogical or otherwise legally unreasonable. The applicant also contended that the Minister failed to have regard to the legal and practical consequences of his decision, or that an element of his reasoning in respect of the decision was irrational, illogical or legally unreasonable.

3    For the reasons that follow, I am satisfied that the Minister’s decision to cancel the applicant’s visa was legally unreasonable and must be set aside.

STATUTORY FRAMEWORK AND APPLICABLE PRINCIPLES

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, including that the person has a substantial criminal record, and that 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.

5    As will be seen, there was ultimately no dispute that the applicant failed the character test because he had a substantial criminal record. 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 sentence of full time imprisonment at the relevant time. The preconditions for the cancellation of the applicant’s visa under s 501(3A) of the Migration Act were clearly met.

6    Section 501CA of the Act provides for the revocation of 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.

7    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) of the Act. 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 the applicant’s case, there was in force a direction made under s 499(1) of the Act: 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.

8    Direction No 99 provides a detailed list, and an accompanying 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; 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.

9    As will be seen, while the Minister was not required to comply with Direction No 99, as if often the case, the Minister’s reasons for decision in this matter essentially follow its basic structure and refer to the relevant considerations outlined in it.

10    Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa.

11    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) of the Act. 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) of the Act. The rules of natural justice do not apply to an exercise of power under s 501BA(2) of the Act: see s 501BA(3) of the Act. The power may only be exercised by the Minister personally: s 501BA(4) of the Act.

12    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. Once satisfied of those two things, the Minister has a discretion to cancel the visa: 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]).

13    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 S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 at [40]. Section 501BA does not specify any particular fact, matter or consideration to which the Minister must have regard 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, 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].

14    It is uncontroversial that legal unreasonableness, or the absence of legal unreasonableness, is an essential element in the lawfulness of decision-making. In the case of s 501BA of the Act, the discretion enlivened on fulfilment of the two statutory conditions referred to earlier “must in each case be exercised by the Minister ‘according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself’”: Graham at [57], citing R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 and Sharp v Wakefield [1891] AC 173 at 179. The Minister must attain the state of satisfaction reasonably on the material to which he (or she, as the case may be) had regard: Graham at [59]; see also Carrascalao at [158]; CWY20 at [140]; NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582; [2023] FCAFC 187 at [120(c)].

15    The relevant principles in relation to legal unreasonableness are well established and need not be considered in great detail.

16    The concept of legal unreasonableness is “not amenable to minute and rigidly-defined categorisation or a precise textual formulary”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [10]; see also Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [59].

17    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].

18    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], [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, “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 [131].

19    In relation to the formation of a state of satisfaction, the test is not limited to whether the state of satisfaction reached was one at which no rational or logical decision-maker could arrive at on the same evidence. As Gordon J explained in Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289; [2022] HCA 15 at [43], by reference to the reasons of Crennan and Bell JJ in SZMDS:

… unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) “if there is no logical connection between the evidence and the inferences or conclusions drawn”.

(Emphasis in original; footnotes omitted.)

20    Where the decision-maker provides reasons, “it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was”: Singh at [47]. As the Full Court there explained (at [47]):

… If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

21    While those observations were directed to the justification for the decision generally, it might equally be said that, where a decision-maker provides reasons for having reached a state of satisfaction, it is to those reasons that the Court must look in order to understand how the state of satisfaction was reached.

RELEVANT FACTS AND PROCEDURAL HISTORY

22    As was noted at the outset, the applicant is a citizen of Iran who resided in Australia pursuant to a permanent protection visa granted to him in September 2012.

The applicant’s visa is mandatorily cancelled

23    On 8 December 2017, the applicant was convicted in the District Court of New South Wales of the following offences: sending a document threatening death or grievous bodily harm; demand property by force with intent to steal; destroy or damage property (valued at less than $2,000) by fire; damage property (valued between $5,000 and $15,000) by fire; damage property (valued between $2,000 and $5,000) and damage property (valued at less than $2,000) by fire in company. He was sentenced to an aggregate term of imprisonment of seven years and sixth months.

24    On 11 June 2019, the applicant’s visa was mandatory cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act. Shortly thereafter the applicant made representations in relation to the revocation of the cancellation of his visa.

The applicant is taken into immigration detention, released and detained again

25    The applicant was released from imprisonment on parole on 7 September 2022 and placed in immigration detention due to the revocation of his visa. He was released from immigration detention on 24 December 2022 following the Full Court’s decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177; [2022] FCAFC 203 in respect of whether an aggregate sentence can be considered to be a term of imprisonment of 12 months or more for the purposes of s 501(7)(c) of the Act. On 3 April 2023, however, the applicant was detained and again placed in immigration detention following the passage of retrospective legislation which effectively reversed the effect of the decision in Pearson.

A delegate decides not to revoke the visa cancellation

26    On 24 April 2023, a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act.

The Tribunal revokes the visa cancellation

27    The applicant applied to the Tribunal for a review of the delegate’s decision. That review application was successful. On 13 July 2023, the Tribunal set aside the delegate’s decision and substituted for it a decision that the cancellation of the applicant’s visa was revoked. The applicant was subsequently released from immigration detention.

28    It is unnecessary to give any detailed consideration to the Tribunal’s reasons given the relatively narrow scope of the applicant’s challenge to the Minister’s decision. It is sufficient to note that the Tribunal found at [116] of its reasons that, if the cancellation of the applicant’s visa was not revoked, the applicant’s partner, who fulfills a “parental role as the primary care giver” of the applicant’s two young children, would likely “experience significant difficulties (including physical, emotional, and financial) in fulfilling the parental role”. That finding is of some potential relevance to the applicant’s second review ground in this proceeding.

The Minister sets aside the Tribunal’s decision and cancels the applicant’s visa

29    On 14 June 2024, almost a year after the Tribunal’s decision and the applicant’s release from immigration detention, the Minister decided to set aside the Tribunal’s decision and cancel the applicant’s visa pursuant to s 501BA(2) of the Act.

30    Before considering the Minister’s reasons for deciding to set aside the Tribunal’s decision and cancel the applicant’s visa, it is relevant to note three ancillary aspects of the Minister’s decision that are apparent from the Minister’s notations on the departmental submission to the Minister.

31    First, the Minister decided to consider the cancellation of the applicant’s visa without offering the applicant “an opportunity to provide information or comments (natural justice)”. As noted earlier, the Minister was permitted to take that course: s 501BA(3) and (4) of the Act.

32    Second, the Minister indicated that he had noted the following:

Note that if you decide to cancel [the applicant’s] visa, it will then be necessary to consider further steps, which may include granting a Bridging R (Subclass 070) (Bridging Removal Pending) (BVR) visa to [the applicant]. This is because, without further Intervention [the applicant], as the subject of a protection finding who (according to s197C(3) of the Act) cannot be removed to Iran and - assuming removal to a third country is not possible - cannot be detained under the Act.

33    The need for that note, and the Minister’s acknowledgement of it, arose from the judgment of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37. As will be seen, the applicant’s primary argument in this proceeding revolves around the extent to which the Minister grappled with the implications of the decision in NZYQ when addressing various national interest considerations.

34    Third, and flowing from the second point, the Minister was effectively presented with a choice if he decided to cancel the applicant’s visa. He could either personally consider whether to grant the applicant a bridging visa, or refer the decision whether to grant the applicant a bridging visa to a delegate, in which case a separate submission would be provided to the Minister. The Minister’s notation indicated that he had decided that the decisions as to whether to grant the applicant a bridging visa was to be referred to a delegate.

Relevant events following the decision in NZYQ

35    The following facts concerning relevant events following the decision in NZYQ were included in a Statement of Agreed Facts.

36    As a result of the High Court’s decision in NZYQ, approximately 150 non­citizens were released from immigration detention on the basis that there was no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future.

37    As at 23 May 2024, 153 individuals who were eligible non-citizens under reg 2.20(18) of the Migration Regulations 1994 (Cth) held Bridging R (Subclass 070) (Bridging Removal Pending) visas (Bridging R visas).

38    During the period between 8 November 2023 and 21 June 2024, all individuals affected by the High Court’s decision in NZYQ who had a visa cancelled under s 501BA of the Act were referred for consideration in relation to the possible grant of a Bridging R visa.

39    All of the individuals who were referred for consideration in relation to the possible grant of a Bridging R visa were granted such a visa.

40    In addition to those agreed facts, the applicant adduced evidence in respect of various statements made by the Minister in a media release and various media appearances concerning the “strict visa conditions” that would be imposed on “everyone in the NZYQ cohort that were released due to a High Court decision”. Those statements will be considered in more detail later in these reasons.

THE MINISTER’S REASONS

41    When he decided to cancel the applicant’s visa, the Minister signed a Statement of Reasons (R) for that decision that had been prepared for him and attached to the department’s submission. The Minister did not make any changes to the draft Reasons attached to the submission. Following are the key elements of the Reasons.

42    First, the Minister noted that he was not required to, and had chosen not to, give the applicant an opportunity to be heard before making the decision under s 501BA(2) of the Act (R [12]-[13]) and was “cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not now be made”: R [13].

43    Second, the Minister outlined the sentences imposed on the applicant as a result of his convictions on 8 December 2017 (R [16]) and stated that he was satisfied that the applicant 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, and that, as a result, the condition in s 501BA(2)(a) was met: R [17]. That finding is uncontroversial.

44    Third, after making some very general observations concerning the requirement that he be satisfied that the cancellation of the applicant’s visa was in the national interest (R [18]-[20]), the Minister noted that he considered that “matters of national interest include, amongst other things, the protection of the community”: R [21]. The Minister then noted that, in considering the need to protect the Australian community, he had considered the “seriousness of [the applicant’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”: R [22].

45    The Minister found, in that context, that the nature of the applicant’s offending was “very serious” (R [34]) and that “any future offending of a similar nature or seriousness would have the potential to cause very serious physical, psychological and financial injury to members of the Australian community” and “could result in significant property damage and/or potentially catastrophic physical injury”: R [35]. The Minister also found that the applicant posed a “Medium-Low risk of reoffending”: R [46]. The applicant does not, in this proceeding, contest any of those factual findings.

46    Critically, the Minister expressed the following conclusion in relation to the risk to the community (at R [47]-[50]):

The Australian government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens.

I have found that the nature of [the applicant’s] conduct is very serious. I have further found that that [the applicant’s] offending has the potential to cause very serious physical, psychological and financial injury to members of the Australian community, if repeated.

On balance, I accept that [the applicant’s] risk of reoffending is Medium-Low. Based on that assessment, I find that there is a Medium-Low, but not insignificant, likelihood that [the applicant] will reoffend in the future. I find that, should he engage in similar conduct again, it would be likely to result in serious psychological, physical and financial harm to members of the community, in particular women and minor children. I have given this consideration weight in support of cancellation being in the national interest.

Considering the nature and seriousness of [the applicant’s] conduct, the potential harm to the Australian community should he commit further offences or engage in other serious conduct, and taking into account the likelihood of [the applicant] 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 and towards a finding that it is in the national interest to cancel [the applicant’s] visa.

47    Fourth, the only other consideration to which the Minister had regard in considering whether he was satisfied that cancellation of the applicant’s visa was in the national interest was the expectations of the Australian community. The Minister made some general observations in respect of the expectations of the Australian community which largely mirrored what is said in respect of that consideration in paragraph 8.5 of Direction No 99. Those general observations included that “the Australian community expects that the Australian government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct”: R [52]. The Minister found, in that regard, that the applicant’s conduct had included the commission of “serious violent crimes, including against women and children” and that the applicant “raises serious character concerns and that the community expectation … applies in his case”: R [52]. The Minister then concluded as follows (R [54]):

I have considered [the applicant’s] specific circumstances to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons. I have concluded this consideration weighs significantly in support of cancellation in this case and accordingly I find that it is in the national interest to cancel [the applicant’s] visa.

48    Having noted that, in deciding whether he was satisfied that it was in the national interest to cancel the applicant’s visa, he was required to make “an evaluative judgment” having regard to a “range of matters that may inform the national interest” (R [55]), the Minister expressed the following conclusion in respect of “national interest considerations” (R [56]):

In the specific case of [the applicant] and his criminal history, which includes repeated and escalating violent crimes, I have considered the nature and seriousness of his conduct and have concluded that it is very serious. I have also considered the harm which would result if [the applicant] reoffended, and the government’s concerns regarding violence offending particularly against women and children. I have also considered the likelihood of [the applicant’s] reoffending and found that there is Medium-Low, but not insignificant, risk of [the applicant] reoffending in a similar way in the future. I have also considered the expectations of the Australian community, which I find weigh in favour of cancellation of [the applicant’s] visa and towards a finding that it is in the national interest to cancel [the applicant’s] visa.

49    It was on that basis that the Minister concluded that the use of his discretionary power to cancel the applicant’s protection visa was in the national interest: R [57].

50    Fifth, the Minister next turned his attention to the discretionary nature of the decision whether to cancel the applicant’s visa and considered whether there were any relevant considerations that might support a decision not to cancel the applicant’s visa despite his satisfaction that it was in the national interest to do so: R [58]. The Minister noted in that regard that he had “given due weight” to the matters that he had discussed “under National Interest”: R [59].

51    The additional considerations to which the Minister had regard in determining whether to exercise his discretion to cancel the applicant’s visa included: the best interests of the applicant’s three minor children (R [61]), which the Minister weighed heavily against the exercise of his discretion to cancel (R [65]); the applicant’s ties to Australia, including the length of time that he had been ordinarily resident in Australia (R [67]), his immediate family ties (R [68]-[71]) and his other family, social and community ties (R [72]-[73]), all of which the Minister concluded weighed strongly against cancellation of the applicant’s visa (R [74]); and the legal consequences of the decision to cancel: R [75]-[86].

52    In relation to the legal consequences of a decision to cancel the applicant’s visa, the Minister referred in general terms to the operation of ss 189, 197C(1) and (3), 197D and 198 of the Act and then reasoned as follows (R [79]-[84]):

[The applicant] is a national of Iran. I accept that [the applicant] engages Australia’s non-refoulement obligations in circumstances where he has been found to be owed protection “on the ground of political opinion, as his political activities and family connections would lead him to be perceived as a political dissenter. He was also found to meet the refugee ground of religion, as he would be perceived to be an apostate for becoming an atheist” Attachment I.

Having regard to the assessment completed by the Department, I accept that [the applicant] is a person in respect of whom Australia has non-refoulement obligations. I further accept that the existence of such obligations weighs against cancellation, while also noting that the finding means that [the applicant] will not be removed to Iran, so the feared harm will not occur and thus does not carry weight in itself.

In accordance with s 197C(3) of the Act, the protection finding made for [the applicant] means that the removal of [the applicant] to Iran is neither required nor authorised by s 198. In this regard, I have noted that the exceptions under s 197C(3)(c) do not currently apply to [the applicant]. As such, I find that a decision to cancel [the applicant’s] visa will not result in his removal in breach of Australia’s non-refoulement obligations.

The legal effect of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, the non-citizen must be released from immigration detention.

Since the protection finding made for [the applicant] means that if his removal to Iran is not required or authorised, he could only be removed to a third country. As there is presently no real prospect of this, he would not be subject to indefinite detention pending his removal.

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. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.

53    Finally, in respect of the legal consequences of the decision, the Minister observed that the cancellation of the applicant’s visa would, by reason of ss 48A, 48B and 501E of the Act, have the effect that the applicant would not be able to apply for any visa, without leaving the migration zone, “other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation”: R [85]. The Minister gave that consideration “significant weight”: R [85].

54    In summarising his reasons for deciding to cancel the applicant’s visa, the Minister: repeated that he was satisfied that the applicant did not pass the character test because of the operation of, in his case, s 501(6)(a) with reference to s 501(7)(c) of the Act, and that he was satisfied that it was in the national interest to cancel the applicant’s visa (R[87]); referred to his findings that the best interests of the applicant’s minor children weighed heavily against cancellation of the applicant’s visa and that the applicant’s ties to Australia and the legal consequences of cancellation also weighed in favour of a decision not to cancel the visa (R [88]-[89]); said that he had weighed those “countervailing factors against the national interest considerations”; and referred again to the fact that the applicant had committed serious crimes (R [90]).

55    Importantly, the Minister reasoned that non-citizens such as the applicant “who have a criminal history” involving offences of the sort committed by the applicant “should not generally expect to be permitted to remain in Australia” (R [90]) and concluded as follows (R [91]-[94]):

Whilst I accept that there is evidence before me to the effect that [the applicant] presents a Medium-Low risk of reoffending, I find that members of the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I cannot rule out the possibility of further criminal conduct by [the applicant]. The Australian community should have a very low tolerance to any risk of further harm of the sort that would be inflicted if [the applicant] reoffended in a similar manner.

I am also cognisant that where very serious harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient to warrant not cancelling the visa.

In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens in these circumstances. I am of the view that the Australian community generally would expect non-citizens who have a very serious criminal history involving violent offending against women and children not to continue to hold a visa, especially where the non-citizen poses an ongoing risk to the Australian community.

I find that the considerations against cancellation are significantly outweighed by the national interest considerations in this case. In particular, I find that the protection and expectations of the Australian community weigh so heavily in favour of cancellation, and a finding that cancellation is in the national interest, that they outweigh the countervailing factors.

56    As can be seen, according to the Minister’s reasoning, the factors that tipped the balance firmly in favour of cancellation were the national interest factors of protection of the Australian community and the expectations of the Australian community that non-citizens who commit serious offences of the sort committed by the applicant should not be allowed to remain in Australia and should not continue to hold a visa.

GROUNDS OF REVIEW IN SUMMARY

57    The applicant pressed two grounds of review in respect of the Minister’s decision.

Ground 1 – Legal unreasonableness or irrationality in forming the requisite state of satisfaction concerning the national interest

58    The first review ground is that the Minister’s state of satisfaction that cancellation of the applicant’s visa was in the national interest was formed in a way that was irrational, illogical and/or legally unreasonable in three respects.

59    First, one of the main reasons given by the Minister for being satisfied that it was in the national interest to cancel the applicant’s visa was the need to protect the Australian community given the seriousness of the applicant’s reoffending, the harm to members of the community that would ensure if the applicant reoffended, and the not insignificant likelihood that the applicant would reoffend. The applicant contended, however, that the Minister failed to explain how cancellation of the applicant’s visa would protect the community in circumstances where he had accepted that: the applicant could not be removed from Australia to Iran; there was presently no real prospect of the applicant being able to be removed to a third country; and, by reason of the decision in NZYQ, the applicant therefore could not be detained in immigration detention. The Minister’s satisfaction that it was in the national interest to cancel the applicant’s visa because of the need to protect the Australian community was therefore said to lack any evident or intelligible justification and was not based on findings or inferences supported by logical grounds.

60    Second, the other main reason given by the Minister for being satisfied that it was in the national interest to cancel the applicant’s visa was that the Australian community expected that non-citizens who commit serious offences of the sort committed by the applicant should not be allowed to remain in Australia and should not continue to hold a visa. The applicant contended that the Minister’s satisfaction that it was in the national interest to cancel the applicant’s visa on that basis was irrational or illogical because the Minister had essentially accepted that neither of those results would follow from the cancellation of the applicant’s visa. That was because, in the circumstances and having regard to the decision in NZYQ, the applicant effectively could not be removed from Australia or detained in immigration detention and that consideration would be given whether he should be granted a visa pursuant to which he would reside in the community.

61    Third, the applicant contended that it was legally unreasonable for the Minister to consider the legal consequences of the decision only at the stage of the exercise of the discretion and not at stage when the Minister formed his satisfaction in respect of the national interest. That was said to be the case particularly as the effect of the decision in NZYQ was that the legal consequences of the decision were intrinsically tied to the assessment of the protection of the community.

Ground 2 – The legal and practical consequences of the decision to cancel

62    The applicant’s second review ground is that, when considering whether to exercise his discretion to cancel the applicant’s visa, the Minister failed to have regard to the legal and practical consequences of the decision to cancel, or alternatively that the Minister’s reasoning in respect of that consideration was irrational, illogical or unreasonable.

63    The applicant contended that there were two possible consequences of the cancellation of the applicant’s visa. The first and immediate consequence was that the applicant would be an unlawful non-citizen unless and until he was granted a visa of some sort. As an unlawful non-citizen, the applicant would not be able to work. The second consequence was that at some point the applicant would or might be granted a Bridging R visa, which was a temporary visa that was subject to various strict conditions, the breach of which would result in the applicant being imprisoned. The applicant contended that the Minister did not consider either of those consequences.

64    The applicant also contended that, to the extent that the Minister considered the possibility that the applicant would be granted a visa, the Minister’s reasoning was irrational and unreasonable, as the Minister decided to refer that issue to a delegate, whereas in his reasons he indicated that he would separately consider the type of visa that might be granted to the applicant upon receipt of further advice from his department. In any event, the only visa that could conceivably have been granted to the applicant was a Bridging R visa.

GROUND 1 - WAS THE MINISTER’S STATE OF SATISFACTION CONCERNING THE NATIONAL INTEREST FORMED IRRATIONALLY OR ILLOGICALLY?

65    There is in my view merit in some of the applicant’s contentions concerning deficiencies and logical gaps in the Minister’s reasoning in respect of his satisfaction that it was in the national interest to cancel the applicant’s visa. The real issue is whether those deficiencies and gaps are sufficiently serious or significant to support a finding that the Minister’s state of satisfaction was formed irrationally or illogically, or on the basis of an irrational or illogical reasoning process, and was therefore legally unreasonable.

66    As summarised earlier, the applicant contended that three aspects of the Minister’s reasoning in respect of his satisfaction that the cancellation of the applicant’s visa was in the national interest were infected by irrationality, illogicality or unreasonableness: first, the aspect of the Minister’s reasoning relating to the need to protect the Australian community from the risk that the applicant may reoffend; second, the aspect of the reasoning concerning the expectations of the Australian community; and third, the Minister’s failure to consider the legal and practical consequences of the cancellation of the applicant’s visa in considering the national interest.

The Minister’s reasoning concerning the need to protect the Australian community

67    As was explained in detail earlier, the primary consideration upon which the Minister’s state of satisfaction concerning the national interest was based was that there was a need to protect the Australian community, or members thereof, from harm that would result from any reoffending by the applicant. The Minister’s found that the offences committed by the applicant in the past were serious, that there was a not insignificant risk that he might reoffend, and that if the applicant did reoffend that would likely result in significant harm to members of the community. Those findings were open on the material that was before the Minister.

68    The problem is that the Minister reasoned that those facts weighed “heavily in support of cancellation in this case and towards a finding that it is in the national interest to cancel [the applicant’s] visa” (R [50]) without providing any logical or rational explanation of why that was so in the applicant’s case. The Minister’s reasoning would not have been problematic in the case of a visa cancellation prior to the decision in NZYQ. That is because the almost inevitable outcome of the cancellation of a visa held by a person in the applicant’s position prior to the decision in NZYQ was that the person would be placed in immigration detention and would effectively remain there indefinitely until removal from Australia was possible. A non-citizen who is segregated (cf Commonwealth v AJL20 (2021) 273 CLR 43; [2021] HCA 21 at [25], [28] and [44]) or separated from the Australian community (cf NZYQ at [47]) by being removed from Australia, or placed in immigration detention following the cancellation of their visa, obviously cannot reoffend in the community. The community is thereby relevantly protected from the risk of the non-citizen reoffending.

69    In the applicant’s case, however, the Minister acknowledged, albeit later in his reasons, that the “legal effect” (R [82]) of the decision in NZYQ, having regard to the applicant’s circumstances, was that he could not be removed from Australia, nor placed in immigration detention, if his visa was cancelled: R [83]. Rather, he would continue to reside in the community: R [84]. How then would the community be protected by the cancellation of the applicant’s visa? The Minister’s reasons are completely silent on that issue.

70    There is in my view a clear and significant logical gap in the Minister’s reasoning in respect of the key considerations to which he had regard in forming his satisfaction that it was in the national interest to cancel the applicant’s visa. The Minister provides no rational or logical link between his finding that there was a need to protect the community from the risk of further offending by the applicant, and his apparent inference or conclusion, in effect, that the cancellation of the applicant’s visa would somehow fulfil, or assist in fulfilling, that need.

71    It was submitted on the Minister’s behalf that he, the Minister, did not make a finding that cancellation of the applicant’s visa would in fact protect the Australian community. It may be accepted that the Minister did not make any express finding to that effect. That appeared, however, to be the very premise or basis for his conclusion (at R [50]) that the need to protect the Australian community weighed heavily in support of the cancellation of the applicant’s visa and towards a finding that it was in the national interest to cancel the applicant’s visa. If that was not the premise or basis for that conclusion, what was? There is otherwise no rational basis for that finding disclosed in the reasons.

72    The Minister also submitted that there was, in any event, no illogicality, irrationality or legal unreasonableness in the Minister’s reasoning process because the Minister recognised that, if the applicant’s visa was cancelled, the “ongoing risk” arising from the fact that the applicant would continue to reside in the community would be “managed under the BVR [Bridging R visa] regime”. It was also submitted that the Minister’s reasoning process involved an “acceptance of the difference between the legal status of the applicant as the holder of a permanent visa and as the holder of a temporary visa”. The Minister’s submission, in effect, was that the rational connection between the need to protect the community and the national interest in cancelling the applicant’s visa was that the applicant would lose his right to permanently reside in the community and would be subject to a temporary visa, the purpose of which was said to “facilitate a removal pathway”.

73    It may perhaps be accepted that the cancellation of a permanent visa held by a person in the applicant’s position, and its replacement with a temporary visa, such as a Bridging R visa subject to stringent conditions, might logically be said to provide some measure of protection to the Australian community. Had the Minister reasoned in the way it was submitted he had when considering whether he was satisfied that the cancellation of the applicant’s visa was in the public interest, it could perhaps not be said that his reasoning was illogical or irrational. The problem for the Minister is that he did not reason that way at all.

74    There is nothing in the Reasons to suggest that the Minister’s satisfaction that it was in the national interest to cancel the applicant’s visa was based on the fact, or the Minister’s belief, that the cancellation of the applicant’s permanent visa, and its replacement by a temporary visa which would be subject to strict conditions, would afford a measure of protection to the Australian community from the risk of any reoffending by the applicant. There is no indication in the Minister’s Reasons that he turned his mind to the question of how the cancellation of the applicant’s visa would fulfil the need to protect the Australia community, let alone to issues such as the differences between the applicant’s existing protection visa and the type of visa that he might be granted if that protection visa was cancelled given the complications arising from the decision in NZYQ. Indeed, it is noteworthy that the Minister referred the question of whether the applicant should be granted a Bridging R visa to a delegate to consider. That supports the inference that he did not really turn his mind to how the cancellation of the applicant’s protection visa would logically assist in anyway in meeting the need to protect the Australian community.

75    In his oral submissions, the Minister appeared to accept that the “rational connection” provided by the difference between permanent and temporary reasons may not have “spelled out” in Minister’s Reasons. In the Minister’ submission, however, that connection “rises naturally from the entirety of the decision” and “doesn’t need to be so articulated”. I do not agree. To adopt and adapt what was said by the Full Court in Singh at [47], either the reasons given by the Minister demonstrated the supposed rational connection or they do not. I consider that they do not. There is in my view a patent logical gap in the Minister’s reasoning concerning the need to protect the Australian community from the risk of the applicant reoffending and the cancellation of the applicant’s visa having regard to the fact that, as the Minister clearly appreciated, the reality after NZYQ was that either way the applicant was going to remain in the community.

76    It should also be emphasised, in this context, that it is important to focus on the process of reasoning in fact employed by the Minister as reflected in his Reasons. It is not relevant to have regard to the process of reasoning that theoretically might have been employed by the Minister, or another reasonable decision-maker in his position. It is accordingly not to the point that the Minister might rationally and logically have reasoned that the cancellation of the applicant’s (permanent) protection visa and its replacement by a temporary visa subject to stringent conditions would afford some level of protection to the Australian community against the risk of reoffending by the applicant. The point is that the Minister did not employ that reasoning process. He appears not to have turned his mind to the issue at all, and instead simply adopted some fairly generic (pre-NZYQ) reasoning about the need to protect the community.

77    The Minister argued that irrationality or illogicality will only be established if the Minister’s decision is one at which no rational or logical decision-maker could arrive at on the same evidence. While that formulation of the test finds some support in the reasoning of Crennan and Bell JJ in SZMDS at [130], in my view it overstates or puts the test too highly. That test may well be applicable where there is no challenge to the decision-making process and the issue is whether the outcome was legally unreasonable. It is not necessarily the case where the issue is whether the decision-maker’s reasoning process was legally unreasonable, including on the basis of illogicality or irrationality. As discussed earlier, in Plaintiff S183/2021, Gordon J held that the test was not so limited because unreasonableness is not confined to outcome, but is equally concerned with process. As her Honour explained (at [43]), a decision may be said to be legally unreasonable if the process of reasoning which led to the decision was illogical or irrational because, for example, it involved inferences or conclusions that could not logically or rationally be drawn from the evidence.

78    The position is, in my view, even clearer where, as here, an illogical or irrational process of reasoning leads a decision-maker to reach a state of satisfaction in respect of a statutory precondition to the exercise of a power. A state of satisfaction which is a precondition to the exercise of a power (often referred to as a “subjective jurisdictional fact”) must be arrived at reasonably and in accordance with “the rules of reason and justice”: Graham at [57]. A state of satisfaction founded on an irrational or illogical process of reasoning could scarcely be said to have been arrived at reasonably and in accordance with the rules of reason and justice. And if the state of satisfaction which is a precondition for the exercise of a power is arrived at unreasonably because it is founded on an illogical or irrational process of reasoning, the resulting exercise of power would undoubtedly be beyond jurisdiction. In those circumstances, it would matter not that the ultimate decision, or outcome of the exercise of the power, was one which might reasonably have been arrived at by another decision-maker on the same evidence.

79    The Minister also emphasised that the threshold for irrationality or illogicality, in the context of legal unreasonableness, was high and that “extreme” illogicality is generally required. As discussed earlier, that submission finds some support in the authorities, though many of the cases that employ that language concern illogical or irrational findings of fact, including in relation to the credit of a party or witness, which form part of the basis for the decision under challenge. It is not difficult to see why the threshold of illogicality is said to be high in those types of cases. Were it otherwise, judicial review on the ground of illogicality or irrationality might easily slide into a form of impermissible merits review: cf SZMDS at [96].

80    That said, just as legal unreasonableness more generally is “not amenable to minute and rigidly-defined categorisation or a precise textual formulary” (Stretton at [10] (Allsop CJ); SZVFW at [59] (Gageler J)), so too the employment of adjectives like “extreme” in this context is unlikely to greatly assist. The concept of legal unreasonableness is concerned with the lawfulness of the exercise of power. Plainly not every lapse in logic on the part of a decision-maker will result in a finding of legal unreasonableness. If, for example, a decision-maker employed irrational or illogical reasoning in making a factual finding which was not an essential or even important plank in the decision, it is unlikely that the decision could be said to be legally unreasonable. Ultimately, the question must be whether the illogical or irrational reasoning in question is such as to vitiate or invalidate the exercise of power, or is such that the exercise of power can be said to have been made without or beyond jurisdiction.

81    While the issue is not beyond argument, in my view the patent gap in logic in the Minister’s process of reasoning based on the need to protect the Australian community from the risk of the applicant reoffending was such that it effectively vitiated the Minister’s state of satisfaction that it was in the national interest to cancel the applicant’s visa. The Minister’s reasoning in respect of the need to protect the Australian community was an important, if not critical, plank in the formation of his satisfaction that cancellation of the applicant’s visa was in the national interest. For the reasons already given, the reasoning was fundamentally flawed. Were it necessary to do so, I would describe that gap in logic as involving extreme illogicality or irrationality.

82    The other two aspects of the applicant’s contention that the Minister’s state of satisfaction concerning the national interest was formed on the basis of an irrational or illogical process of reasoning may be dealt with in briefer terms.

The Minister’s reasoning concerning the expectations of the Australian community

83    The other consideration to which the Minister gave significant weight in forming his opinion that the cancellation of the applicant’s visa was in the national interest was the expectations of the Australian community. The Minister’s reasoning in relation to the expectations of the Australian community was, it would be fair to say, generic and largely based on the general terms of paragraph 8.5 of Direction No 99. That reasoning included the observation that the Australian community “as a norm” expects that the Government would not allow non-citizens who commit serious offences to “remain in Australia” and would expect that such persons “should not continue to hold a visa”: R [51]-[52].

84    The difficulty for the Minister once again is that he failed to explain in his Reasons how those supposed expectations translated or applied to the applicant’s case. In particular, the Minister’s reasoning in respect of those community expectations did not address or engage with the fact, acknowledged by the Minister, that even if the applicant’s protection visa was cancelled, it was highly likely that he would nevertheless both remain in Australia and continue to hold a visa, albeit most likely a temporary bridging visa. The Minister did not explain how the cancellation of the applicant’s visa would meet or accord with the community expectations to which the he referred in circumstances where the applicant would in any event almost certainly continue to reside in the Australian community pursuant to a visa, albeit a temporary visa.

85    In the circumstances, I consider there to be merit in the applicant’s contention that this process of reasoning was also irrational or illogical. There was, once again, a gap in the Minister’s logic. The gap in logic was that there was no explanation as to how the cancellation of the applicant’s visa, in his particular circumstances, would accord with the expectations of the Australian community and would therefore be in the national interest. The Minister sought to meet this gap in the reasoning by asserting that the Reasons should be understood as indicating that the Australian community expects that non-citizens who commit serious offences should not continue to hold a “substantive visa” or remain in Australia “as the holder of a substantive visa”. I am not persuaded that the Reasons should be read or understood in that way, essentially for the reasons given earlier. There is no indication in the Reasons that the Minister turned his mind to the difference between permanent or substantive visas and temporary visas when considering the expectations of the Australian community in the applicant’s circumstances.

86    The Minister submitted that, even if the Minister’s reasoning concerning the expectations of the Australian community involved some “minor errors of expression”, the reasoning does not involve any illogicality or irrationality of the kind that could support a finding of jurisdictional error. I do not accept that the flaws in the Minister’s reasoning in relation to this aspect of his decision could fairly be said to amount to mere minor errors of expression. For the reasons already given, I would characterise the Minister’s reasoning in relation to this aspect of his decision and Reasons as involving some degree of irrationality or illogicality. That said, it might perhaps be said to doubtful that the degree and nature of the illogicality or irrationality involved, if considered in isolation, was such as to support a finding of legal unreasonableness or irrationality.

87    It would, however, not be appropriate to consider this aspect of the Minister’s reasoning in isolation. Rather, it should be considered in conjunction with the illogicality and irrationality of the Minister’s reasons as to why the need to protect the Australian community supported a finding that it was in the national interest to cancel the applicant’s visa. Indeed, the deficiencies in the logicality of the Minister’s reasoning process in respect of both aspects of his consideration of the national interest are very similar. In short, the Minister’s somewhat generic reasoning in respect of both the protection of the Australian community and the expectations of the Australian community was deficient and ultimately illogical because the Minister failed to provide a rational link between those considerations and the particular circumstances and complexities of the applicant’s case which arose because of the decision in NZYQ. Both of the considerations that the Minister considered to be critical to his satisfaction that it was in the national interest to cancel the applicant’s visa were infected with effectively the same flaw or flaws. That fortifies my conclusion that the Minister’s state of satisfaction in relation to the national interest was legally unreasonable.

The Minister’s failure to consider the legal and practical consequences of the cancellation of the applicant’s visa in considering the national interest

88    The third aspect of the applicant’s challenge to the Minister’s formation of his state of satisfaction that it was in the national interest to cancel the applicant’s visa was somewhat different. It did not involve the contention that the Minister’s reasoning concerning the national interest was illogical or irrational. Rather, it was that the Minister’s state of satisfaction was unreasonable because he failed to take into account the legal and practical consequences of the cancellation of the applicant’s visa.

89    The applicant acknowledged that the Minister did give some consideration to the legal and practical consequences of the cancellation of the applicant’s visa when considering whether to exercise his discretion to cancel. The applicant argued, however, that the Minister failed to fully discharge his obligation to have regard to that consideration, or that he had regard to that consideration in a way that was irrational or illogical. That contention is the subject of the second ground of review. The applicant’s argument in the context of the Minister’s formation of his state of satisfaction concerning the national interest was, in effect, that it was legally unreasonable for the Minister to have “siloed” his consideration of the consequences of cancelling the visa and have regard to it only in respect of the exercise of his discretion.

90    As discussed in more detail in the context of the second review ground, the legal and practical consequences of the cancellation of the applicant’s visa were said to be twofold. Both consequences effectively flowed as a result of the decision in NZYQ. First, the direct and immediate statutory consequences of the visa cancellation was said to be that, unless and until he was granted another visa, the applicant would have to reside in the community as an unlawful non-citizen who was prohibited from working. Second, it was said that the only type of visa that realistically could be granted to the applicant was a Bridging R visa with approximately 21 mandatory conditions, including conditions the breach of which would be a criminal offence carrying a mandatory minimum sentence of imprisonment for one year.

91    Accepting, for present purposes, that those were the legal and practical consequences of the Minister’s decision to cancel the applicant’s visa, for the applicant’s argument regarding this aspect of the Minister’s reasoning in respect of the national interest to have any merit, he must essentially establish two things. The first is that the Minister did not consider those consequences when considering whether he was satisfied that cancellation of the applicant’s visa was in the national interest, despite having addressed that issue, at least to some extent, when considering the exercise of his discretion. The second is that it was legally unreasonable for the Minister to not have regard to that consideration when addressing the national interest.

92    As for the first of those two matters, it is abundantly clear that the Minister made no reference to the legal or practical consequences of the decision to cancel in that part of his reasons which dealt with the national interest. His conclusions on the national interest considerations (R [55]-[57]) referred only to facts and circumstances relevant to the risk of harm to, and the need to protect, the Australian community and the expectations of the Australian community. The Minister, however, submitted that, while the Minister’s reasons in respect of the national interest do not expressly refer to the legal and practical consequences of the cancellation of the applicant’s visa, it can nevertheless be inferred that the Minister turned his mind to that issue, but considered that it was better addressed either as part of the exercise of his discretion, or at some later point “when those later decisions arose”. In the Minister’s submission, the fact that the Minister expressed his conclusions in a certain order does not of itself indicate that he failed to consider the evidence and issues as a whole. The Minister cited the reasoning of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30 at [5] in support of the latter submission.

93    I reject the Minister’s submissions in that regard. In my view it can readily be inferred from the structure and content of the Reasons that, in forming his state of satisfaction that the cancellation of the applicant’s visa was in the national interest, the Minister did not have regard at all to the legal and practical consequences of the decision to cancel. I am not persuaded that it can be inferred from the Reasons that the Minister had regard to that issue when addressing whether he was satisfied that it was in the national interest to cancel, but decided that the issue was better addressed in the context of his exercise of the discretion or at some later point. Nor can it be inferred that the Minister considered the legal and practical consequences in respect of the national interest, but said nothing about that in the Reasons because he considered that it was irrelevant, or of no significance, to the national interest: see CWY20 at [128]. Nothing said by Gleeson CJ in Applicant S20/2002 (including at [14], which is presumably the paragraph that the Minister intended to cite) assists the Minister’s submissions in that regard. There is in my view nothing in the Reasons to suggest that the Minister turned his mind at all to the legal and practical consequences of the cancellation of the applicant’s visa when considering whether he was satisfied that it was in the national interest to cancel the applicant’s visa.

94    I am, however, not persuaded that it was legally unreasonable for the Minister not to consider the legal and practical consequences of the cancellation of the applicant’s visa when considering whether he was satisfied that it was in the national interest to take that course. That is so for at least two reasons.

95    First, I do not accept that, as a matter of statutory construction, the legal and practical consequences of a decision to cancel a visa is a mandatory consideration to which the Minister is bound to have regard when considering whether he or she is satisfied that the cancellation of the visa is in the national interest. As noted earlier, the question of whether cancellation of a visa is in the national interest is largely a political question and s 501BA of the Act does not specify any particular fact, matter or consideration to which the Minister must have regard in forming a state of satisfaction concerning the national interest. Nor, in my view, does the subject matter, scope and purpose of the provision or the Act provide any basis for implying any mandatory considerations.

96    Second, I am not otherwise persuaded that the requirement of reasonableness obliged the Minister to have regard to the legal and practical consequences of the cancellation of the applicant’s visa in the particular facts and circumstances of his case. I accept that it does not necessarily follow from the fact that the legal and practical consequences of the cancellation of the visa was not a mandatory consideration that the Minister’s failure to have regard to that consideration was not legally unreasonable. There may be cases where the Minister’s failure to have regard to a particular fact, matter or circumstance when considering whether cancellation of a visa is in the national interest constitutes legal unreasonableness. That was the case in CWY20, where the Full Court held, in effect, that it was legally unreasonable for the Minister to fail to have regard to Australia’s non-refoulement obligations when assessing the national interest consideration in the particular circumstances of that case. Besanko J (with whom the other members of the Full Court agreed on this issue) stated in that context (at [157]):

In my opinion, there is no incongruity or oddity in holding that Australia’s non-refoulement obligations is not a mandatory relevant consideration in every case and in concluding that, in a particular case, a failure to consider Australia’s non-refoulement obligations in the context of the national interest gave rise to a state of satisfaction as to the national interest not attained reasonably.

97    The facts and circumstance of this case, however, are far removed from those in CWY20. The consequences of the cancellation of the visa in question in CWY20 included the potential breach of Australia’s non-refoulement obligations. As Allsop CJ observed, “Australia’s international obligations and violation thereof can thus be seen to bear directly and naturally on the conception of the ‘national interest’”: CWY20 at [10]. While it may perhaps be accepted that the cancellation of the applicant’s protection visa had serious legal and practical consequences for the applicant, I do not accept that it was legally unreasonable for the Minister to not consider those consequences when considering whether it was in the national interest to cancel the applicant’s visa, but to instead consider them when considering whether to exercise his discretion to cancel. I do not consider that the potential consequences of the cancellation of the applicant’s visa bore directly or naturally on the national interest.

98    Despite this finding, I am nevertheless satisfied that the applicant’s first ground of review of the Minister’s decision is made out on the basis of the appellant’s first two arguments concerning the irrationality, illogicality or unreasonableness of the Minister’s reasons in respect of his satisfaction that it was in the national interest to cancel the applicant’s visa. The Minister’s state of satisfaction that it was in the national interest to cancel the applicant’s visa was founded on illogical, irrational or unreasonable reasoning and is effectively vitiated or rendered invalid on that basis. As a statutory precondition to the Minister’s decision to cancel the applicant’s visa was not satisfied, the cancellation decision was beyond jurisdiction.

GROUND 2 - DID THE MINISTER FAIL TO REASONABLY CONSIDER THE LEGAL AND PRACTICAL CONSEQUENCES OF THE DECISION?

99    In considering whether to cancel the applicant’s visa, the Minister was required to take into account the direct and immediate legal or statutory consequences of the decision to cancel the visa: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 at [9]-[10] (Allsop CJ and Katzmann J); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 at [84] and [88] (Kenny, Flick and Griffiths JJ); AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586; [2024] FCAFC 103 at [33] (Murphy, Stewart and McEvoy JJ). He was also required to take into account the practical consequences of the decision: NBMZ at [177] (Buchanan J, with whom Allsop CJ and Katzmann J agreed at [1]); Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; [2016] FCAFC 61 at [107] (North J) and [129] (Kenny and Perry JJ).

100    There could be no question that the Minister gave some consideration to the legal and practical consequences of cancelling the applicant’s visa: R [75]-[85]. The real question is whether the Minister’s consideration of the consequences was irrational, illogical or otherwise unreasonable.

101    As discussed earlier in these reasons, the Minister acknowledged that if the applicant’s visa was cancelled, that would not result in him being removed from Australia (R [81]), and that, by reason of the decision in NZYQ, the applicant would not be subject to immigration detention and would continue to reside in the community (R [82]-[84]). Having acknowledged those consequences, the Minister observed that he would “separately consider the type of visa on which he [the applicant] should reside and conditions to be imposed on that visa, following further advice from the Department”(R [84]). That observation, however, was inconsistent with the Minister’s notation, on the second page of the departmental submission (paragraph (e)), that he had decided to refer the question whether to grant a Bridging visa R to a delegate.

102    Putting that inconsistency to one side for the moment, the Minister then went on to consider that the consequences of cancelling the applicant’s visa included that various provisions in the Act imposed “significant restrictions” on the applicant’s ability to apply for another visa: R [85]. The Minister concluded that if the applicant’s visa was cancelled, that would “mean that without leaving the migration zone, he [the applicant] would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994)”: R [85]. He gave that consideration “significant weight”. Finally, the Minister observed that he had “not speculated” on the likelihood of a Minister (including himself) “intervening” under any of the statutory provisions to which he had referred, or the “consequences for [the applicant] following any such intervention”: R [86].

103    The applicant contended that the Minister’s consideration of the legal and practical consequences of the decision to cancel his visa was illogical, irrational or unreasonable for essentially three reasons: first, the Minister failed to have regard to the fact that, unless and until the applicant was granted a visa of some description, he would be residing in the community as an unlawful non-citizen and would be prevented from working; second, the Minister’s statement that he would separately consider the type of visa pursuant to which the applicant would reside in Australia was incorrect as the Minister had decided to refer that issue to a delegate; and third, it was unreasonable for the Minister to separately consider what visa to grant to the applicant, or to refer that issue to a delegate, in circumstances where the only realistic or feasible option was to grant the applicant a Bridging R visa which was subject to approximately 21 mandatory conditions, including conditions the breach of which would constitute a criminal offence carrying a mandatory term of imprisonment for one year.

104    There is in my view merit in the applicant’s contentions. I am persuaded that the Minister’s process of reasoning concerning the legal consequences was substantially flawed, deficient and, in all the circumstances, legally unreasonable. The Minister’s reasons failed to grapple with what were almost certain to be the actual legal and practical consequences of the decision to cancel the visa. Indeed, it is a fair inference from the surrounding facts and circumstances that the Reasons appear to have been framed as they were so the Minister could avoid, or would be able to avoid, grappling with those inevitable consequences.

105    The surrounding facts and circumstances included the following.

106    On 6 December 2023, the Minister issued a media release in which he referred to the “four layers of protection” that the Government had put in place to “keep Australians safe” in response to the release of certain immigration detainees following the decision in NZYQ. Those four layers of protection were said to include “[s]tringent visa conditions”.

107    In a media interview on 13 February 2024, the Minister again referred to the Government having put in place “four layers of protection” which included “strict visa conditions to ensure that we have the framework in place to ensure community safety in respect of those people the High Court has required to be released”.

108    In a media release issued on 3 June 2024 – 11 days before his decision to cancel the applicant’s visa – the Minister referred to the fact that he had “cancelled 30 visas of non-citizens with serious criminal histories, in the national interest”. After criticising the decisions of the Tribunal that had “reinstate[d]” those visas, the Minister stated:

Our strong laws impose strict visa conditions on everyone in the NZYQ cohort that were released due to a High Court decision.

This can include electronic monitoring, curfews, financial reporting, spot checks, random home visits, as well as the other mandatory conditions which means the location of every individual is known.

As the Government has consistently said, community safety is our number one priority and we will always act in the interest of Australians.

(Emphasis added.)

109    There could be little doubt from the Minister’s statements that he had adopted a policy or standard approach, or was aware that it was effectively Government policy, that all non-citizens whose visas had been cancelled but who, by reason of the decision in NZYQ, were unable to be placed or kept in immigration detention, would be granted bridging visas – Bridging R visas – which were subject to strict or stringent conditions.

110    That inference is also borne out by the agreed facts in respect of the grant of visas following the decision in NZYQ. Those facts included that between 8 November 2023 and 21 June 2024, all individuals [non-citizens] who had a visa cancelled under s 501BA of the Act and were affected by the decision in NZYQ were referred for consideration in relation to the possible grant of a Bridging R visa, and that all of the individuals who were referred for consideration in relation to the possible grant of a Bridging R visa were granted such a visa. That is entirely unsurprising given that the legislative and regulatory regime that introduced Bridging R visas was enacted specifically in response to the decision in NZYQ: see in particular the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) and the Explanatory Memorandum to the Migration Amendment (Bridging Visa Conditions) Bill 2023 at 2.

111    Bridging R visas were also undoubtedly subject to very strict and stringent mandatory conditions. It is unnecessary to trace through the statutory provisions and detail the precise nature of the conditions. The relevant statutory scheme was considered by the High Court in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 419 ALR 457; [2024] HCA 40 at [2] and [20]-[36] (Gageler CJ, Gordon, Gleeson and Jagot JJ), a decision in which two of the mandatory conditions to which Bridging R visas are subject were found to be unconstitutional on the basis that they were punitive. Putting those two invalid conditions to one side, there could be no doubt that the remaining conditions could fairly be described as strict and stringent. Some of the conditions require the visa holder to notify the Minister of specified matters, or to report at specified times at specified places or in a specified manner, or to attend at specified places on specified days and at specified times. Failure to comply with those conditions is a criminal offence punishable by up to five years imprisonment, with a mandatory minimum sentence of one year in prison: see ss 76B and 76DA of the Act.

112    Having regard to those surrounding facts and circumstances, it is open to infer that it was highly likely, if not inevitable, that the cancellation of the applicant’s visa would result in him in due course being issued with a Bridging R visa which was subject to those stringent conditions. Indeed, that inference is inescapable. In those circumstances, the Minister plainly should reasonably have had regard to that fact when considering the legal and practical consequences of the cancellation of the applicant’s visa. He did not do so. Instead, somewhat disingenuously, having indicated that he would refer to a delegate the question of whether to grant the applicant a Bridging R visa, the Minister inconsistently stated that he would “separately consider the type of visa on which [the applicant] should reside and the conditions to be imposed on that visa, following further advice from the Department”.

113    The Minister also indicated, again somewhat disingenuously, that he had not “speculated on the likelihood” of a Minister, including himself, intervening under various provisions that were almost certainly not likely to be the subject of any such intervention. There was clearly nothing to speculate about. The Minister was aware of the almost inevitable consequence of the cancellation of the applicant’s visa. The apparent suggestion that, having cancelled the applicant’s visa on the national interest ground, the Minister, or another Minister, or a delegate, would intervene in any of the ways postulated by the Minister (at R [85]-[86]) was, at best, fanciful: cf MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 525; [2021] FCAFC 35 at [55]-[56]. Moreover, as the Minister himself had publicly indicated, everyone within the so-called “NZYQ cohort” would be issued with a Bridging R visa subject to strict and stringent conditions. That obviously included the applicant as he was part of the NZYQ cohort.

114    It is, in all the circumstances, difficult to avoid the inference that the Minister’s reasons were framed as they were so that, when considering the consequences of the cancellation of the applicant’s visa, the Minister would not have to grapple with the almost inescapable fact that the applicant would be issued with a Bridging R visa which would be subject to what the Minister had himself described, at least when engaging with the media, as strict and stringent conditions. It is, however, perhaps unnecessary to go that far. It is sufficient to say that the Minister’s consideration of the legal and practical consequences of the cancellation of the applicant’s visa was manifestly flawed, deficient and unreasonable.

115    I also accept that the Minister failed to consider that another almost inevitable consequence of the cancellation of the applicant’s visa was that the applicant would for some period reside in the community as an unlawful non-citizen. That was effectively inevitable given the Minister’s decision to refer the question of whether to grant the applicant a Bridging R visa to a delegate. During that period, the applicant would not be able to work. That was of particular significance in the applicant’s case given the findings that the Tribunal had made concerning the financial difficulties that the applicant’s family had suffered as a result of the applicant’s circumstances. I doubt that the Minister’s failure to address this consequence would alone support a finding of legal unreasonableness. It does, however, rather reinforce the overall conclusion that the Minister’s consideration of the consequences of cancellation was unreasonable.

116    The Minister submitted that, even if the Minister was required to consider the direct and immediate legal consequences of the decision to cancel the applicant’s visa, he was not required to consider the practical consequences. The direct and immediate legal consequences were said to be that the applicant would become an unlawful non-citizen, though as a result of the decision in NZYQ, he could not be removed from Australia and would continue to reside in the community. In the Minister’s submissions, those direct and immediate legal consequences were taken into account in considering whether to cancel the applicant’s visa. Any other consequences that may have flowed from the cancellation of the applicant’s visa, including the inability of the applicant to work and the possibility of “further discretionary action”, including the grant of a Bridging R visa, were said to be mere practical consequences which, while foreseeable, were far removed from the inevitable and direct legal consequences. The Minister also submitted that the Minister took into account the fact that the applicant could be granted a Bridging R visa and that, when he said that he (the Minister) would separately consider the type of visa that would or might be granted to the applicant, and the conditions that would be imposed in respect of that visa, the Minister was actually referring to himself acting through a delegate.

117    I reject those submissions. Having regard to the authorities referred to earlier, I do not accept that the Minister was only required to consider the direct and immediate legal consequences of the decision to cancel the applicant’s visa. In my view, the applicable principle extends to the consideration of the likely practical consequences, particularly when considered under the rubric or concept of legal unreasonableness. Reasonableness, in the particular legal and factual context of this case, required the Minister to have regard to the almost inevitable consequence that the applicant would be granted a Bridging R visa subject to stringent conditions, the breach of some of which would result in the applicant being imprisoned.

118    I also doubt that it could be said the Minister took into account the fact that the applicant “could” be granted a Bridging R visa, particularly in light of the Minister’s indication that he was unwilling to speculate about what action might be taken in the future, including by himself. In any event, the granting of a Bridging R visa was not just a possibility, it was well-nigh an inevitability. It was also an inevitability that, for whatever reason, the Minister did not acknowledge in his Reasons. Finally, I am unable to read the Minister’s statement that “I will separately consider” as meaning, in effect, “I will separately consider, though my delegate”, as the Minister effectively contended in this Court.

119    It follows that in my view, the applicant’s second ground of review of the Minister’s decision is made out. The Minister failed to properly or reasonably consider the legal and practical consequences of the cancellation of the applicant’s visa, or his reasoning in respect of that consideration was legally unreasonable. The exercise of his discretion to cancel the applicant’s visa was legally unreasonable in those circumstances.

CONCLUSION AND DISPOSITION

120    For the reasons that have been given, the Minister’s purported cancellation of the applicant’s visa pursuant to s 501BA of the Act was both beyond jurisdiction, because a statutory precondition to the exercise of the jurisdiction was vitiated by legal unreasonableness, and involved a jurisdictional error, because he failed to reasonably have regard to a consideration that the exercise of his discretion required him to consider. It is, in those circumstances, appropriate to make an order in the nature of a writ of certiorari setting aside the Minister’s decision to set aside the Tribunal’s decision (which revoked the cancellation of the applicant’s visa) and to cancel the applicant’s visa. It is also appropriate to make an order restraining the Minister from giving effect to that decision. The Minister, as the unsuccessful party, should also pay the applicant’s costs.

Associate:

Dated:    14 August 2025