Federal Court of Australia

Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue, directed to the respondent, quashing the decision made on 21 March 2025 to set aside a decision of the Administrative Appeals Tribunal made on 20 June 2024 and cancel the applicant’s visa purportedly under section 501BA of the Migration Act 1958 (Cth).

3.    The respondent pay the applicant’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    By an amended originating application filed 11 August 2025, the applicant sought judicial review of a decision of the Assistant Minister for Immigration made on 20 March 2025 pursuant to s 501BA(2) of the Migration Act 1958 (Cth). By that decision, the Assistant Minister set aside a decision of the Administrative Appeals Tribunal made on 20 June 2024 and cancelled the applicant’s Class BB Subclass 155 Five Year Resident Return visa.

2    The application, which was made under s 476A of the Migration Act, raised five grounds of review:

(a)    Ground one: the Assistant Minister did not spend sufficient time to have undertaken active intellectual engagement with the materials;

(b)    Ground two: the Assistant Minister failed to consider the most up to date information;

(c)    Ground three: the Assistant Minister made an unintelligible finding in determining that the applicant’s offending against his former partner was “family violence”;

(d)    Ground four: the Assistant Minister acted illogically, irrationally or legally unreasonably in making findings about the applicant’s “remorse” that contradicted earlier findings on that matter by the Tribunal and the sentencing judge;

(e)    Ground five: the Assistant Minister acted legally unreasonably in not realising that the lack of evidence in relation to the applicant’s current circumstances was because of the Minister’s own choices.

3    For the reasons set out below, I am satisfied that the applicant has established ground five of the grounds of review and the Assistant Minister’s decision should be set aside.

background

4    The applicant was born in Mauritania and arrived in Australia in May 2008, at the age of 33. Prior to arriving in Australia, the applicant and his family lived in Mauritania and Senegal. In 1989, while the applicant and his family were in Mauritania, the applicant’s father was arrested and beaten and tortured while in prison. A few months after, the applicant and the rest of his family were taken by the police to the border with Senegal and forced to cross the border into Senegal, where they were taken to a refugee camp. The applicant lost members of his family during this ordeal and before arriving in Australia.

5    After the applicant arrived in Australia, he engaged in a lengthy period of offending, spanning from his first conviction in February 2010 to his latest conviction in September 2020.

6    On 3 September 2020, the applicant was sentenced in the Perth District Court to 22 months imprisonment following a conviction for an unlawful act causing bodily harm to a person. The offending involved the applicant, during an argument with his long-term partner (from whom he was separated at the time), breaking a wine bottle on a coffee table and putting the broken bottle to her throat, causing cuts to her neck which required surgery.

7    On 8 September 2020, the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s501(3A) of the Migration Act. The applicant made representations seeking revocation of that decision and, on 16 November 2021, a delegate of the Minister decided not to revoke the cancellation decision. The applicant sought merits review of the delegate’s non-revocation decision in the Tribunal.

8    On 9 February 2022, the Tribunal affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s decision and, on 27 October 2022, Colvin J made orders that the application be dismissed. The applicant appealed.

9    On 22 May 2023, following a concession by the Minister, the Full Court made orders by consent allowing the appeal and quashing the Tribunal’s decision. The application for review was remitted for redetermination according to law.

10    On 20 June 2024, upon remittal, a differently constituted Tribunal set aside the delegate’s decision and substituted it with a decision revoking the mandatory cancellation of the applicant’s visa.

11    On 20 March 2025, the Assistant Minister set aside the Tribunal decision of 20 June 2024 under s 501BA(2) of the Migration Act and cancelled the applicant’s visa. The applicant sought judicial review of the Assistant Minister’s decision.

the statutory provisions

12    Section 501 of the Migration Act provides, relevantly, as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)     The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

(2)     The Minister may cancel a visa that has been granted to a person if:

(a)     the Minister reasonably suspects that the person does not pass the character test; and

(b)     the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3)     The Minister may:

(a)     refuse to grant a visa to a person; or

(b)     cancel a visa that has been granted to a person;

if:

(c)     the Minister reasonably suspects that the person does not pass the character test; and

(d)     the Minister is satisfied that the refusal or cancellation is in the national interest.

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

…

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(3B)     Subsection (3A) does not limit subsections (2) and (3).

(4)     The power under subsection (3) may only be exercised by the Minister personally.

…

(5)     The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)     the person has a substantial criminal record (as defined by subsection (7));

….

Substantial criminal record

(7)     For the purposes of the character test, a person has a substantial criminal record if:

…

(c)     the person has been sentenced to a term of imprisonment of 12 months or more;

….

13    Section 501BA of the Migration Act confers power upon the Minister to set aside a decision made under s 501CA and cancel a person’s visa. It relevantly provides as follows:

501BA Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the ART;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable by application under Part 5

(5)    A decision under subsection (2) is not reviewable by application under Part 5.

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

The assistant MINISTER’S DECISION

14    The documents provided to the Assistant Minister by the Department of Home Affairs ran to nearly 1,000 pages and included a draft Statement of Reasons in addition to two decisions of the Tribunal, transcripts from one of the Tribunal hearings, sentencing remarks in relation to the applicant’s offending against his former partner, numerous witness statements and submissions from the applicant.

15    The covering Submission by the Department asked the Assistant Minister to consider the Submission and all the attachments, and indicate how the Assistant Minister wished to proceed, including:

…whether you wish to consider exercising your personal power under s501BA to set aside the Administrative Appeals Tribunal's (AAT) decision and cancel the visa of Mr BA because you are satisfied that he does not pass the character test and you are satisfied that the cancellation is in the national interest.

16    The Assistant Minister was also asked to indicate whether they wished to consider cancellation under s 501BA with or without offering the applicant an opportunity to provide information or comments (natural justice). The Submission stated that s 501BA(3) allowed the Assistant Minister to cancel the applicant’s visa without natural justice and that the consequence of not affording natural justice would be that the applicant would not have a further opportunity to advance reasons why his visa should not be cancelled. Finally, the Assistant Minister was asked to record their decision and sign on the Decision Page, and if they agreed with the draft Statement of Reasons, to sign that statement, with any necessary amendments.

17    The Submission identified that the key issue for consideration was whether to set aside the Tribunal’s decision under s 501CA of the Migration Act and cancel the applicant’s visa under s 501BA of the Migration Act. The Assistant Minister was advised by the Department that the discretion to cancel the applicant’s visa under s 501BA would be enlivened if the Assistant Minister 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)(a), (b) or (c), or s 501(6)(e) of the Migration Act, and if they were satisfied that cancellation was in the national interest under s501BA(2)(b).

Character Test

18    As already mentioned, s 501(6)(a) of the Migration Act provides that a person does not pass the character test if the person has a substantial criminal record. Under s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.

19    The Submission indicated that, on 3 September 2020, the applicant was convicted of acts or omissions causing bodily harm or danger to any person, and sentenced to 22 months imprisonment. This was also recorded in the draft Statement of Reasons and confirmed in the Attachments to the Submission.

20    The Statement of Reasons recorded that the Assistant Minister 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), and so the condition under s 501BA(2)(a) of the Act [was] met”.

National Interest

21    In the Statement of Reasons, the Assistant Minister identified the following matters as relevant to the national interest: the protection of the community, including the prevention of conduct constituting family violence, and the expectations of the Australian community.

22    In determining whether it was in the national interest to cancel the applicant’s visa, the Assistant Minister said that they had given the highest priority to the safety and need to protect the Australian community and, in doing so, the Assistant Minister had considered the seriousness of the applicant’s criminal conduct, having regard to the circumstances and nature of the conduct and the likelihood of reoffending, and the risk posed to the Australian community if such a likelihood eventuated.

23    In regard to the seriousness of the applicant’s criminal conduct, the Assistant Minister noted that the Australian Government considers that all offending involving violence against women, or otherwise constituting family violence, is viewed very seriously by the Australian community. The Statement of Reasons set out the applicant’s history of offending. In relation to the applicant’s conviction on 3 September 2020 for “acts or omissions causing bodily harm or danger to any person” against the applicant’s former partner, Ms T, the Assistant Minister noted that:

…[The applicant] and his former partner, ‘Ms T’, had been in a family and domestic relationship for over five years, but had separated by the time of [the applicant’s] offending. They nevertheless remained friendly and, on 7 September 2019, [the applicant] was at Ms T’s house with a mutual friend, ‘Ms M’. When Ms T returned home, she found [the applicant] with Ms M and became upset by this and demanded that Ms M leave. After Ms M left, Ms T confronted [the applicant] and an argument broke out, during which Ms T threw a jar of sauce at [the applicant], which smashed against the living room wall. [The applicant] then went toward Ms T, causing her to move backwards towards the back door in the bathroom. [The applicant] broke a wine bottle against a coffee table and put it to Ms T's throat. This caused four cuts to Ms T's neck and throat area, which started bleeding and she began screaming, [the applicant] then left the property without rendering assistance. Ms T was taken to hospital, where she received treatment, including surgery to repair the cuts.

It is clear that [the applicant’s] offending has involved violence against his former partner, Ms T. Violent crimes, crimes of a violent nature against women, and family violence are viewed very seriously by the Australian Government and the Australian community.

24    The Assistant Minister noted that, in his submissions to the Tribunal dated 9 October 2023, the applicant did not dispute that “family violence” had occurred at the time of his offending. The Assistant Minister stated that, although the applicant and Ms T were not in a family or domestic relationship at the time of the offending, they had been in such a relationship for over five years immediately prior to the time of offending, and continued to remain friendly, as evidenced by the applicant’s presence in her home at the time of the offending.

25    The Assistant Minister concluded that:

For those reasons and in circumstances where [the applicant] did not dispute that family violence had occurred, I find that Ms T had links to [the applicant] of a familial nature and that his offending against her should be considered family violence.

26    The Assistant Minister noted and agreed with the sentencing judge’s assessment that the applicant’s offending was “very serious”, especially where the applicant’s violent offending was committed against his former female partner and could have resulted in catastrophic injury.

27    The Assistant Minister found that the applicant’s criminal history demonstrated a complete disregard for the law and judicial authority in Australia, elevating the seriousness of the applicant’s offending. The Assistant Minister further found that the applicant’s criminal record was to be considered “very serious” having regard to the sentence imposed for the offending against Ms T, the increasing trend of seriousness and frequency of his offending over the previous decade and the cumulative effect of his offending.

28    The Assistant Minister considered the risk to the Australian community of any future offending and potential to cause harm. In assessing the likelihood of the applicant reoffending in the future, the Assistant Minister considered available information regarding the factors that may have contributed to the applicant’s past conduct, as well as indications of remorse and the extent of the applicant’s rehabilitation, including more recently in custody.

29    The Assistant Minister found there was an ongoing risk that the applicant would reoffend and, should he engage in similar conduct again, that it would be likely to result in serious psychological and physical harm as well as financial harm to members of the community. The Assistant Minister stated that they had given this consideration significant weight in support of cancellation of the applicant’s visa being in the national interest.

30    Finally, in relation to the national interest, the Assistant Minister considered the expectations of the Australian community. The Assistant Minister noted that the Australian community expects that the Australian Government can and should cancel a visa if the visa holder raises serious character concerns through certain kinds of conduct, including acts of family violence, crimes against women and crimes against government representatives in the performance of their duties. The Assistant Minister noted that the applicant had engaged in conduct of that nature and found that the applicant raised serious character concerns and that the community’s expectations applied in the applicant’s case. The Assistant Minister stated that they attributed this consideration significant weight towards a finding that it was in the national interest to cancel the applicant’s visa.

31    The Assistant Minister concluded by saying that the use of their discretionary power to cancel the applicant’s visa was in the national interest.

Discretion

32    Recognising that the power to cancel a visa under s 501BA is discretionary, the Assistant Minister stated that they had considered whether there were relevant considerations that might support a decision not to set aside the Tribunal’s decision and cancel the applicant’s visa, even though they were satisfied that it was in the national interest to cancel the visa. The Assistant Minister proceeded to take into account various relevant considerations, including the best interests of any affected minor children, the applicant’s ties to Australia, the legal consequences of the Assistant Minister’s decision (being that, as an unlawful citizen, the applicant was liable to be removed from Australia) and the impediments if the applicant was removed to Mauritania.

33    In conclusion, the Assistant Minister stated that they were satisfied that the applicant did not pass the character test and that it was in the national interest to cancel the applicant’s visa. The Assistant Minister was satisfied that their discretion to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA was enlivened and stated that, in considering the use of the discretion, they had given the highest priority to the safety of the Australian community. The Assistant Minister found that the considerations against cancellation were outweighed by the national interest considerations in this case, and they exercised their discretion to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA of the Migration Act.

the applicant’s submissions

Ground One – alleged failure to undertake active intellectual engagement with the materials

34    The applicant submitted that the Assistant Minister did not spend sufficient time with the materials to have given them proper, genuine and realistic consideration. That was because the materials provided to the Assistant Minister included 42 attachments and over 1,000 pages, whereas the Assistant Minister recorded that they had spent only 55 minutes reading the Submission and attachments, which would not have been sufficient time to undertake active intellectual engagement with the materials.

35    The applicant focused on what the Assistant Minister said they had read. The Decision Page attached to the Submission, which the Assistant Minister signed, stated that the “following is my decision under s 501BA … having read and considered all of the material” and that the “[t]otal time taken in considering submission [sic] and attachments” was 55 minutes. Furthermore, the Statement of Reasons, which the Assistant Minister had also signed, stated that the Assistant Minister “had regard to the documents provided by the Department” and that the “[t]otal time taken in considering submission [sic] and attachments” was 55 minutes.

36    The applicant further submitted that it was open to the Assistant Minister to file evidence about how they spent the 55 minutes and, in the absence of such evidence, and applying the principles in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, the Court should infer that the Assistant Minister did not read the materials they claimed to have read.

Ground Two – alleged failure to consider the most up to date information

37    The applicant submitted that the Assistant Minister failed to consider the most up-to-date material available to him because the Assistant Minister, through the Department, was in possession of a substantial up-to-date submission in the form of a letter sent on behalf of the applicant dated 24 June 2024, which was not referred to in the materials provided to the Assistant Minister.

Ground Three – alleged unintelligible finding that the applicant had committed “family violence”

38    The applicant submitted that the Assistant Minister made an unintelligible finding in determining that the applicant had committed “family violence”.

39    The applicant submitted that the most significant aspect of the applicant’s offending was against his former intimate partner, who at the time of the offending was not his partner or member of his family, as a matter of ordinary English. In the Statement of Reasons, the Assistant Minister found, in circumstances where the applicant did not dispute that family violence had occurred, that Ms T had links of a familial nature and his offending against her should be considered family violence. The applicant accepted that the breakdown of a relationship does not necessarily terminate a family relationship. For example, where people share children, pets, property or business, it is tenable to describe a former partner as being part of the family. However, in the present situation, it was untenable to regard the applicant and Ms T as part of a family at the time of the applicant’s offending. For those reasons, and without seeking to downplay the seriousness of the offending, the applicant submitted that it was unintelligible for the Assistant Minister to describe the applicant’s offending towards Ms T as “family violence”.

40    The applicant further submitted that the Assistant Minister acted legally unreasonably in not appreciating that the applicant’s concession before the Tribunal that “family violence” had occurred was due to a legal fiction. Before the Tribunal, the applicant had conceded that Ms T was a member of his family based on the definition of “family violence” in the applicable Ministerial Direction, which captured a person’s former intimate partners. The applicant submitted that the Assistant Minister was not bound by the Ministerial Direction and it was legally unreasonable for the Assistant Minister to reach this finding without taking into account the basis of the applicant’s concession or seeking further comment from the applicant on this question.

Ground Four – alleged illogical, irrational or legally unreasonable finding about remorse

41    The applicant submitted that the Assistant Minister acted illogically, irrationally or legally unreasonably in making findings about the applicant’s remorse that contradicted those of the Tribunal in June 2024 and the sentencing judge in relation to the applicant’s offending against Ms T.

42    The applicant submitted that, having identified remorse as an important factor in this case, the Assistant Minister took a view about the applicant’s remorse that was mixed, and worked adversely to the applicant, or which diminished the weight that might have been placed on the notion of remorse. The applicant submitted that the Assistant Minister had an information gap compared with the Tribunal, who saw the applicant give evidence in person and made observations in relation to the applicant’s remorse, which were favourable to the applicant. The applicant submitted that the Assistant Minister’s actions should be seen as legally unreasonable because it was not open to the Assistant Minister to reach a different view to that of the sentencing judge or the Tribunal or, at the very least, it was not open to reach a different conclusion without specifically addressing why that different view was reached.

Ground Five – alleged legal unreasonableness in not realising the lack of evidence about the applicant’s circumstances was because of the Assistant Minister’s own choices

43    The applicant submitted that the Assistant Minister acted legally unreasonably in treating as adverse to the applicant the circumstance that there was not up-to-date information about the applicant’s psychological or broader mental health condition before the Assistant Minister. Alternatively, it was legally unreasonable to deny to the applicant any potential favourable weight that might have been placed on up-to-date evidence on the topic because the reason the information was not up to date was because of the Assistant Minister’s choice not to afford procedural fairness to the applicant. The applicant submitted that the Assistant Minister was required, at least, to understand that circumstance and bring it to account.

44    The applicant relied on GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415, where Bennett J observed that the legislative choice to exclude procedural fairness carried with it the potential to proceed on the basis of incomplete information or information that was not up to date, and the failure to update the information was not a jurisdictional error. However, the Minister had stepped outside the bounds of logical reasoning and proceeded without evidence to reach an impermissible conclusion about the current status of the matter under consideration, when they were aware that the information was not up to date and was being considered adversely to the applicant.

legal principles

45    Section 501BA operates if the Minister relevantly “is satisfied” that a person does not pass the character test and that the cancellation of the person’s visa is in the national interest. The determination of what is in the national interest is broad and evaluative and, although not without limits, it is largely a political question. The Migration Act does not identify particular factors which the Minister must have regard to in determining whether a visa cancellation is in the national interest and, as such, the Minister may determine what matters are to be taken into account when assessing the national interest: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 at [54] and [58] (Derrington and Hespe JJ).

46    Where a Minister exercises a power personally, the law recognises that they do not work alone but makes decisions with the assistance of their department. The law treats the collective knowledge and experience of the department as the Minister’s own knowledge and experience: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 98 ALJR 594; [2024] HCA 11 at [18] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ), citing Bushell v Environment Secretary [1981] AC 75 at 95 (Diplock LJ). The foregoing permits a Minister to rely on their department to sift and organise materials, prepare summaries and prioritise correspondence and, generally, there is no obligation on a Minister to read every document in order to exercise a power personally: McQueen at [19], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 65–66 (Brennan J). A Minister may discharge their function by relying only upon a departmental summary, provided they have regard to relevant considerations conditioning the exercise of the relevant power: McQueen at [19], [23], [30], [33]; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10 at [91] (Gordon J); [295] (Jagot J).

47    In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [61] (Griffiths, White and Bromwich JJ), the Full Court expressed three qualifications to the general principle that a Minister may rely on departmental summaries of material: first, reliance upon a materially deficient summary may give rise to an inference that the decision-making process was improper; secondly, the use of a summary may not be appropriate when it seeks to capture a substantive argument if the force of the submission is thereby lost; and, thirdly, account must be taken by a Minister of any statement in a summary which advises the Minister to consider a particular document or documents. In Carrascalao, it not having been suggested that the summary was inaccurate or incomplete, or that it did not convey the force of any argument made, the Full Court held that the Minister was entitled to rely upon it. However, the Minister was obliged to turn their mind to whether they needed to refer to the detailed attachments themselves, and not merely rely on the summaries, to obtain a complete understanding of the merits of the case: Carrascalao at [125], [138].

48    In determining whether or not to cancel a visa under s 501BA of the Migration Act, the Minister is required to engage in an active intellectual process in considering the merits of the case: Carrascalao at [33], [43]–[47]. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist their decision-making, as well as other matters which arise from the relevant statutory context. A finding that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the applicant bears the onus of proof: Carrascalao at [47]–[48]; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38].

49    The relevant principles in relation to jurisdictional error based on illogical or irrational findings are well established and were not in issue. They were conveniently summarised by the Full Court in Minister for Immigration and Border Protection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175 (Murphy, O’Callaghan and Anastassiou JJ) (in a passage quoted with approval by the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs (2021) 287 FCR 328; [2021] FCAFC 166 at [22] (McKerracher, Griffiths and Bromwich JJ):

23    A finding of illogicality or irrationality requires the court to find that the [decision-maker’s] decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at [130].

24    As the Full Court explained in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ):

... for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must 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 and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 ... at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 ... at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result ...

25    In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]-[86], primarily by reference to the High Court’s decision in SZMDS, the Full Court (Beach, O’Callaghan and Anastassiou JJ) said:

Differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

determination

Ground One – alleged failure to undertake active intellectual engagement with the materials

50    The applicant’s focus was not on any direction by the Department that the Assistant Minister act in a particular way or take into account all of the materials provided by the Department, but on the Assistant Minister’s statement that they had done so.

51    The applicant acknowledged that it was open to the Assistant Minister to rely upon summaries prepared by the Department and to use a draft statement of reasons as a defacto summary of the case: McQueen at [33]; EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [239] (Perry J). The applicant submitted, however, that the present case was distinguishable from McQueen and EPU19 because the Assistant Minister said they had read and considered all of the material provided by the Department, and signed the Decision Page to indicate that it had taken 55 minutes to consider the Submission and attachments. The Statement of Reasons contained a statement to the same effect regarding the time taken to consider the Submission and attachments.

52    As already mentioned, s 501BA(2) of the Migration Act operates if the Minister relevantly “is satisfied” that a person does not pass the character test and that the cancellation of the person’s visa is in the national interest. As observed in Palmer at [54], s 501BA(2) does not identify particular factors which the Minister must have regard to in determining whether a visa cancellation is in the national interest and, as such, the Minister may determine what matters are to be taken into account.

53    Against that background, the applicant placed unreasonable reliance or emphasis on the Assistant Minister’s acknowledgment of having read and considered “all of the material”, which was an expression that appeared in documents drafted by the Department that were ultimately signed by the Assistant Minister. The primary difficulty with the applicant’s submission is that s 501BA(2) of the Migration Act leaves it to the Minister, or the Assistant Minister in this case, to determine what matters are to be taken into account in evaluating the question of the national interest. Secondly, the manner in which the Departmental materials were framed or provided could not determine how the Assistant Minister approached their consideration of the materials or the relevant factors. The applicant did not submit that the draft Statement of Reasons was inaccurate or incomplete, or did not convey the force of any argument made: Carrascalao at [138]. Nor did the applicant submit that the Submission directed the Assistant Minister to engage with all of the materials: McQueen at [25]. To the extent that the Submission or materials encouraged the Assistant Minister to read all of the attachments, it could not bind the exercise of the Assistant Minister’s statutory power.

54    The Assistant Minister was, therefore, entitled to rely on the Department’s summary and presentation of the materials, and required to bring their own mind to bear on the parts of the Submission and materials that required detailed consideration, including the summary contained in the draft Statement of Reasons which the Assistant Minister ultimately adopted as their own: McQueen at [19]; Carrascalao at [138]. In my assessment, the statements on the Decision Page and the Statement of Reasons should not be read as connoting that the Assistant Minister read every word on every page, but that they had considered the material that they considered necessary in order to exercise their statutory power.

55    For those reasons, the applicant failed to establish the first ground of review.

56    The applicant’s submission that the Court should draw a Jones v Dunkel inference from the unexplained failure to call the Assistant Minister proceeded on the flawed premise that the Assistant Minister’s signature on the Decision Page and Statement of Reasons could be taken as an acknowledgement that they spent 55 minutes reading “all of the materials”. For the reasons already explained, that reading of the documents was not open and it is therefore unnecessary to consider whether a Jones v Dunkel inference should be drawn.

Ground Two – alleged failure to consider the most up to date information

57    The applicant conceded that ground two must fail in light of Bromberg J’s decision in Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758. In Chetcuti, his Honour held that the principle referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40 at 45 is only applicable where the material is essential to the exercise of the power, or in other words, it must be a mandatory consideration. The applicant conceded that consideration of the most up-to-date information, as a matter of statutory implication, did not arise in the present statutory context. Nevertheless, the applicant asked the Court to find that the letter dated 24 June 2024 and enclosures was sent and available to the Assistant Minister but to otherwise dismiss ground two on the basis of Chetcuti.

58    The Minister accepted that the letter and enclosures were receipted by the Department before the Assistant Minister’s decision and, in that sense, were in the Assistant Minister’s constructive possession.

59    Accordingly, I find that the letter dated 24 June 2024 and enclosures were sent to and receipted by the Department before the Assistant Minister’s decision was made and ground two should otherwise be dismissed.

Ground Three – alleged unintelligible finding that the applicant had committed “family violence”

60    The applicant submitted that the Assistant Minister made an unintelligible finding in determining that the applicant’s offending against Ms T was “family violence” because at the time of his offending, Ms T was not the applicant’s partner or member of his family, as a matter of ordinary English, and the Assistant Minister did not understand that the applicant’s concession was due to a legal fiction, namely the definition of “family violence” in the applicable Ministerial Direction.

61    The applicant’s counsel referred the Court to Ministerial Direction 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Although leading counsel for the Minister submitted that Ministerial Direction 99 applied at the time of the Assistant Minister’s decision, nothing turned on this as the relevant definitions were materially the same.

62    Direction 110 defines “family violence” as follows:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

a) an assault; or

b) a sexual assault or other sexually abusive behaviour; or

c) stalking; or

d) repeated derogatory taunts; or

e) intentionally damaging or destroying property; or

f) intentionally causing death or injury to an animal; or

g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.

63    Direction 110 defines “member of the person’s family” as follows:

member of the person's family, for the purposes of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.

64    The Assistant Minister was not bound to consider or apply a direction made under s 499 of the Migration Act in making a decision under s 501BA(2): Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209; [2017] FCAFC 68 at [75]-[79] (Bromwich J, with Bromberg and Charlesworth JJ agreeing); BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 at [4] (Bromberg J and Mortimer J, as her Honour then was). Nevertheless, it was open to them to do so or to apply concepts from such a direction: see, for example, BJKY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1495 at [40] (Anderson J).

65    Direction 110 was binding on the Tribunal and, in the applicant’s material before the Tribunal, the applicant conceded that the offending against Ms T “involved an act of family violence for which the applicant was convicted”. The Tribunal found (at T [85]) that there was “nothing to cavil with the proposition and finding that Ms T was a member of the Applicant’s family at the time he committed acts of family violence against her. I so find.”

66    The applicant submitted that it might have been open to the Assistant Minister to treat the applicant’s offending as “family violence” as described in Direction 100, if the Assistant Minister understood that the Direction adopted a legal fiction. However, it was legally unreasonable of the Assistant Minister to reach the impugned finding without taking account of the limited basis of the applicant’s concession or seeking further comment from the applicant on this question. Furthermore, the applicant submitted that the Assistant Minister’s finding was unintelligible because the applicant’s former partner was not, at the time of the offending, his partner or member of his family, as a matter of ordinary English.

67    It is clear from the Statement of Reasons that the Assistant Minister treated the fact that the applicant’s offending against Ms T was “family violence” as a significant matter going to the national interest and regarded the applicant’s offending as very serious. Furthermore, that the Assistant Minister afforded that matter significant weight in favour of cancellation of the applicant’s visa.

68    The Assistant Minister was aware that the applicant and Ms T were not in a family or domestic relationship at the time of offending: Statement of Reasons at [27], [28], [30]. The Assistant Minister noted, however, that Ms T was the applicant’s former partner, and that they had been in such a “family and domestic” relationship for over five years “immediately prior” to the offending and they continued to remain friendly, as evidenced by the applicant’s presence in her home at the time of offending. A lifelong restraining order had been imposed on the applicant by the Perth District Court on 3 September 2020 preventing him from having any contact with or engaging in any violent, intimidating or offensive behaviour towards Ms T: Statement of Reasons at [30]. Thus, the Assistant Minister concluded, at [30]:

…For those reasons, and in circumstances where [the applicant] himself does not dispute that family violence had occurred, I find that Ms T had links to [the applicant] of a familial nature and that his offending against her should be considered family violence.

69    In my assessment, there was nothing inherently illogical with treating, as a matter of ordinary language, family violence as extending to an immediate past domestic partner. As the Minister submitted, the especial vulnerability of a domestic partner does not necessarily and immediately cease the moment they are not living under the same roof and the end of a relationship is not always clear or clean cut. The Assistant Minister was aware that the applicant and Ms T had separated at the time of the offending. However, as the Assistant Minister noted, they had been in a five year relationship immediately prior to the offending, they remained friends and the offending occurred at Ms T’s home, where the applicant was when Ms T arrived home. The applicant did not contest any of those matters. Although the Assistant Minister took into account the applicant’s concession before the Tribunal, the Assistant Minister did not accept that concession unquestioningly and was careful to reach their own conclusion on the matter.

70    In any event, the Minister submitted, and I accept, that the impugned finding was an integer of fact finding, which was of intermediate effect leading to the ultimate conclusion. Accordingly, to establish jurisdictional error the applicant was required to show that the relevant illogical reasoning was material to the ultimate conclusion or end result: VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [103]–[109] (Button J).

71    It may be accepted that the Assistant Minister gave significant weight to the seriousness of the applicant’s most recent offending against Ms T and that the applicant’s offending against Ms T should be considered “family violence”. However, the Assistant Minister also considered the sentence imposed for the applicant’s offending against Ms T, the increasing trend of seriousness in the applicant’s offending since 2010, the frequency of his offending within the span of a decade and the cumulative effect of his offending, leading the Assistant Minister to describe the applicant’s record, as a whole, as very serious. As the Statement of Reasons fairly shows, there were a number of evaluative considerations bearing upon the Assistant Minister’s consideration of the national interest. I am not satisfied that the impugned finding was, in the requisite sense, material to the ultimate conclusion.

72    For those reasons, the applicant failed to establish the third ground of review.

Ground Four – alleged illogical, irrational or legally unreasonable finding about remorse

73    The applicant submitted that the Assistant Minister made an unreasonable, illogical or irrational finding about the applicant’s remorse, because it contradicted the findings about the applicant’s remorse which were made by the Tribunal in June 2024 and the sentencing judge’s remarks in relation to the applicant’s offending against Ms T.

74    In relation to the risk to the Australian community and potential harm, in assessing the likelihood of the applicant reoffending in the future, the Assistant Minister considered the factors that may have contributed to the applicant’s past conduct. The Assistant Minister also made observations, from the material available, regarding the applicant’s remorse and the extent of the applicant’s rehabilitation, including more recently while in custody. The material available included a statement from the applicant, the Tribunal’s decision of 20 June 2024, the sentencing judge’s remarks and a psychological report of Dr Davis dated 27 November 2023.

75    The Assistant Minister accepted that the applicant had protective factors in place to reduce the likelihood of repeat offending. The Assistant Minister also observed that, while the applicant had stated that he was remorseful for his conduct, there was material that demonstrated a lack of insight by the applicant into his offending.

76    The Assistant Minister concluded:

Overall, I am willing to accept that [the applicant] is remorseful for his offending against Ms T. I am also willing to accept, based on the statements he gave to Dr Davis, that he is remorseful for his driving offences and the offences against the police. However, I am not convinced that [the applicant] is remorseful for his other offending, particularly his knife offence in 2012, and his stealing and fraud offences in 2017.

77    The Assistant Minister then proceeded to explain that his finding in relation to the applicant’s lack of remorse for his other offending was based on statements made in the psychological report of Dr Davis, who had interviewed the applicant.

78    The Assistant Minister’s finding at paragraph 76 above did not contradict the sentencing judge’s remarks. As noted in an earlier section of the Statement of Reasons (at [51]), the sentencing judge’s remarks were to the effect that the applicant was remorseful and sorry for his actions. The sentencing judge’s remarks related only to the applicant’s offending against Ms T, and not the applicant’s history of offending more broadly. The Assistant Minister accepted that the applicant was remorseful for his offending against Ms T.

79    In the Tribunal’s decision, the Senior Member found that:

…there seems little doubt the Applicant has come to a realisation about the extent of the difficulty into which his past difficulties with alcohol have placed him. On that basis, I am of the view that whatever remorse, regret and other apologetic tone he may now express for his unlawful conduct is both genuine and palpable.

80    The applicant submitted that the Assistant Minister had an information gap compared with the Tribunal, being that the Tribunal saw the applicant giving evidence in person, and this meant that the Assistant Minister should not have reached a finding on remorse that contradicted the Tribunal. The applicant submitted the present case was analogous to the circumstances in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (Kiefel CJ, Bell, Gageler and Keane JJ). At the time of ABT17, the Immigration Assessment Authority had jurisdiction under the Migration Act to review a decision of a delegate of the Minister to refuse to grant a protection visa. The Authority on a review was obliged to consider the review material provided to it by the Secretary, subject to the Authority having specific powers to “get” and, in specified circumstances and subject to conditions, “to consider” new information. The Minister or their delegate had a discretion to obtain new information and was specifically empowered to invite the applicant to give additional information in writing, at an interview or by telephone. The potential for a record of interview to take various forms raised the potential for an informational gap to arise in the review material, for example, where an audio recording was available but that did not put the Authority in a position to have a visual impression of the applicant’s demeanour. The question that arose was whether compliance with the reasonableness condition could compel the Authority to exercise its powers to get and consider new information by inviting the applicant to an interview in order to assess and consider their demeanour in the conduct of a review. The majority (Kiefel CJ, Bell, Gageler and Keane JJ) held that it could, and in that case, it did.

81    Kiefel CJ, Bell, Gageler and Keane JJ, at [14], stated (footnotes omitted):

An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. "Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker." That has "long been recognised" and continues to be appreciated despite awareness on the part of sophisticated decision-makers that "an ounce of intrinsic merit or demerit" measured by reference to objectively established facts and the apparent logic of events "is worth pounds of demeanour”.

82    The Minister sought to distinguish ABT17 from the present case on the basis that ABT17 was a case about an unreasonable failure to seek information and there is no statutory discretion under s 501BA for the Assistant Minister to seek new information.

83    The Minister relied on Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 (Mortimer, Bromwich and Thomas JJ) at [25], where Mortimer J (as her Honour then was) accepted the Minister’s submission that divergence from the Tribunal’s opinions and reasoning was not itself evidence of a lack of proportionality, or legal unreasonableness. Further, her Honour stated, at [28] that:

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

84    While the applicant is correct to say the Assistant Minister made a different finding to the Tribunal on this issue, that does not disclose jurisdictional error in the Assistant Minister’s decision. The Assistant Minister found that the applicant was remorseful for some but not all of his offending, saying they were not convinced that the applicant was remorseful for the offences in 2012 and 2017. The Assistant Minister made the finding after consideration of material that was before them and was careful to explain the conclusion reached by reference to assessments contained in Dr Davis’ report. As the Chief Justice said in Tereva at [28], a decision made under s 510BA(2) does not have to respond to, or rebut findings set out in, the underlying tribunal decision.

85    For those reasons, the applicant failed to establish the fourth ground of review.

Ground Five – alleged legal unreasonableness in not realising lack of evidence was because of the Assistant Minister’s own choices

86    In assessing the likelihood of the applicant reoffending in the future, the Assistant Minister considered the applicant’s remorse and the extent of the applicant’s rehabilitation, including more recently in custody. The applicant’s rehabilitation was addressed in various materials, including the psychological report of Dr Davis. Relevantly, Dr Davis’ assessment, which the Assistant Minister accepted, was that the applicant was a “low to moderate risk of general offending” and a “moderate risk for both general violence and intimate partner violence”. The Assistant Minister noted Dr Davis’ observation that those assessments of risk would only be reduced if the applicant addressed “his chronically untreated mental health concerns, develops meaningful employment and leisure pursuits, and refrains from alcohol intoxication”.

87    The applicant submitted that, on a fair reading of [84]–[85] of the Statement of Reasons, the Assistant Minister took into account, adversely to the applicant, a lack of information about whether the applicant had addressed his mental health concerns or developed meaningful employment or leisure pursuits, and that lack of information weighed heavily against the applicant.

88    At [84]–[85] of the Statement of Reasons, the Assistant Minister stated:

Further, without any expert opinions to the contrary and in circumstances where [the applicant’s] protective factors have not been tested in the community for any long period of time, I accept and adopt the assessment of Dr Davis in his report of November 2023, that [the applicant] was at a “low-to moderate risk for general offending” and a “moderate risk for both general violence and intimate partner violence”. Dr Davis observed that these assessments of risk would only be reduced if [the applicant] addresses his chronically untreated mental health concerns, develops meaningful employment and leisure pursuits, and refrains from alcohol intoxication.

Although I have accepted that [the applicant] satisfies the latter, there is no information before me about whether he has treated his mental health concerns, or whether he has developed meaningful employment and leisure pursuits, particularly in the mining industry where he says he has qualifications to work. Therefore, I adopt the assessment of Dr Davis, and find that there remains an unacceptable, ongoing risk that [the applicant] could reoffend.

89    The applicant submitted that the Assistant Minister’s acceptance of Dr Davis’s assessment was an acceptance that Dr Davis’ assessment of the risk of the applicant reoffending, undertaken nine months earlier, remained current. The applicant accepted that the principle of legal reasonableness did not compel the Assistant Minister to obtain up-to-date information. The applicant submitted, however, that the Assistant Minister was compelled to refrain from reasoning in a way that was unfavourable to the applicant due to the lack of information. Furthermore, the reasoning of the Assistant Minister was illogical because there was no rational basis to support it.

90    In GRCF, Bennett J set aside the Minister’s decision on the grounds that it was illogical, irrational or unreasonable, essentially because it was based on findings that were not supported by the material before the Minister and which might have affected the evaluative judgment involved in making the decision. Her Honour accepted that, as a result of the exclusion of the rules of natural justice by s 501BA(3), the statute contemplated that the Minister might make a decision absent full information or on the basis of incomplete information, even where there may have been potential changes in circumstances since the original decision: at [39], [43]. Her Honour observed that, while it would not be open to complain that such a decision is procedurally unfair (see Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 at [13] (Charlesworth J)), the bounds of legal reasonableness can still impose some constraints on the drawing of inferences about present circumstances from dated material: GRCF at [41] and [53], referring to LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 at [48], [100] (Charlesworth J).

91    In LJTZ, at [48], Charlesworth J stated:

The more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness. Much will depend on the inferences reasonably capable of being drawn about present day circumstances from the dated material.

92    On the facts in GRCF, Bennett J concluded that the Minister had erred by making a finding that the applicant’s attitude to seeking psychological treatment or counselling persisted at the time of the Minister’s decision, on the basis of evidence given some 10 months earlier, given the absence of any evidence as to what had occurred in the interim period: at [51]–[52], [54]. In other words, rather than simply drawing logical inferences from incomplete information, the Minister erroneously “proceeded on the positive basis that the position as it was 10 months earlier persisted at the time of his decision”: at [51].

93    The Minister sought to distinguish the present case from GRCF on the basis that the Assistant Minister had a specific cognisance of the possible information gap. The Minister submitted that in GRCF, the Minister made a positive finding of fact about the circumstances that existed without an evidential basis, whereas here the Assistant Minister simply noted that there was a lack of information. I do not accept the Minister’s submission.

94    In GRCF, Bennett J concluded, at [54], that the Minister had:

stepped outside the bounds of logical reasoning and proceeded without evidence to reach an impermissible conclusion about the current status of GRCF’s rehabilitation and his current attitude towards rehabilitation at the time of the decision.

95    As the applicant submitted, the facts of this case are analogous to GRCF. On a fair reading of the Statement of Reasons, the Assistant Minister used the assessment in Dr Davis’ report, undertaken nine months previously, to make a current assessment on the risk of the applicant reoffending. The Assistant Minister noted Dr Davis’ observation that the assessment of risk of the applicant reoffending “could be reduced if the applicant addressed his chronically untreated mental health concerns, developed meaningful employment and leisure pursuits, and refrains from alcohol intoxication”. The Assistant Minister proceeded to note that there was no information before them about whether the applicant had treated his mental health concerns, developed meaningful employment or leisure pursuits. The Assistant Minister concluded, by saying “[t]herefore, I adopt the assessment of Dr Davis, and find that there remains an unacceptable, ongoing risk that [the applicant] could reoffend”. The Assistant Minister did not merely note the lack of evidence, they adopted Dr Davis’ assessment on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk.

96    The lack of evidence about the applicant’s treatment of his mental health concerns, employment status and leisure pursuits lead the Assistant Minister to reach an impermissible conclusion about the applicant’s risk of reoffending.

97    For those reasons, I am satisfied that the applicant has established ground five.

conclusion

98    The decision of the Assistant Minister should be set aside. The reconsideration of the exercise of the power is a matter for the Minister.

Associate:

Dated:    10 October 2025