Federal Court of Australia

XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision made by the respondent on 6 January 2025 under s 501BA of the Migration Act 1958 (Cth) purporting to set aside the decision of the Administrative Appeals Tribunal dated 23 November 2022 and cancel the visa that had been granted to the applicant.

2.    The respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

1    The applicant challenges a decision made personally by the Assistant Minister for Immigration under s 501BA of the Migration Act 1958 (Cth), setting aside a decision of the Administrative Appeals Tribunal to revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Partner visa, and cancelling that visa.

2    For the reasons set out below, I consider that the Minister’s decision was not made within a reasonable time and therefore was not authorised by s 501BA of the Migration Act. Further or alternatively, the Minister’s decision was legally unreasonable, in that it was based on findings about facts and circumstances at the time of his decision for which there was no rational basis or evidentiary support.

3    I have otherwise rejected the other grounds relied on by the applicant, including that the Minister unreasonably failed to give any weight to the legal consequences of his decision, or that the Minister erred by failing to give personal consideration to the materials attached to the submission that was provided to him by the Department of Home Affairs.

4    As the Minister’s decision was beyond power, it should be set aside. In the circumstances, there is no need for any additional declaratory relief.

Background

5    The applicant was born in Egypt in 1975 as the eldest of three children. After completing his secondary and tertiary education in Egypt, he arrived in Australia on 28 August 2007 as the holder of a student visa. He subsequently married an Australian citizen, and was granted a Partner visa on 24 January 2012.

6    On 17 December 2014, the applicant was convicted of an offence of intentionally causing serious injury, for which he was sentenced to seven years’ imprisonment with a non-parole period of four years. The offence occurred on 4 February 2013 in the course of an altercation between the applicant and his sister’s partner, during which the applicant stabbed the victim multiple times through an open car window, causing life-threatening injuries which left the victim with residual physical disability and significant psychological injury.

7    On 20 June 2018, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act. The applicant subsequently made representations about revocation of this decision in accordance with s 501CA of the Migration Act.

8    On 13 September 2022, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4).

9    On 23 November 2022, the delegate’s decision was set aside by the Tribunal, which decided to revoke the original decision to cancel the applicant’s Partner visa: XPLW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4777 (T)

10    On 6 January 2025, the Minister decided under s 501BA of the Migration Act to set aside the Tribunal’s decision and cancel the applicant’s Partner visa.

The Tribunal’s decision

11    It is common ground that the applicant did not pass the character test because of the operation of s 501(6)(a) and (7)(c), having been sentenced to a term of imprisonment of more than 12 months. Accordingly, the Tribunal’s decision turned on whether there was another reason why the original decision should be revoked, for the purposes of s 501CA(4)(b)(ii).

12    For such purposes, the Tribunal had regard to the applicable written directions given by the Minister under s 499 of the Migration Act, namely, Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which commenced on 15 April 2021. In accordance with the Direction, the Tribunal was required to take into account the primary considerations and other considerations relevant to the applicant’s case, within the framework of principles set out in section 5.2 of the Direction.

13    The Tribunal was ultimately satisfied that there was another reason why the original decision to cancel the applicant’s Partner visa should be revoked under s 501CA. The Tribunal summarised its conclusions as follows (T [82]–[84]):

I give some weight to the primary considerations of the protection and expectations of the Australian community which weigh in favour of not revoking the cancellation decision, but I do not consider that they outweigh the countervailing considerations. I give minimal weight to family violence as a primary consideration for the reasons set out above. The countervailing factors are the best interests of minor children, risk of harm if returned, the prospect of indefinite detention, the extent of impediments if removed and links to the Australian community.

The factors which weigh most heavily in favour of the applicant are the extent of his rehabilitation, his very low likelihood of re-offending, the desperate need for the applicant to assist with the 5 year old niece and the aging parents plus the risk of harm he would face if returned to Egypt. I have heard oral evidence from the applicant and his sister, brother and mother and I have reached the view that the applicant and his family are good people who came to Australia under very difficult circumstances. The applicant committed an awful crime and has been incarcerated in prison and detention since 2014. He has used that time to rehabilitate himself and to gain the skills needed for life in the community. The prison system has served its purpose of rehabilitating the applicant. I believe that he will not reoffend. The medical expert puts him in the low risk category for re-offending. I believe that he should be released so that he can start a new life and, most importantly, help his family through what will be difficult times for them.

I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed a serious crime involving violence. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. The applicant has committed a serious offence but he has otherwise shown respect for Australia’s law enforcement framework. The applicant, as a non-citizen who has committed a serious violent crime should generally expect to forfeit the privilege of staying in Australia. However, the Australian community would take into account his particular circumstances namely his positive steps towards rehabilitation, his extremely low likelihood of re-offending and the need for him to assist his family.

14    These conclusions were supported by the following findings in relation to each of the primary and other considerations set out in the Direction.

15    Protection of the Australian community from criminal or other serious conduct: The Tribunal considered that the applicant’s offending was very serious, and that the offending was viewed as such by the Australian Government and community: T [28]. Nevertheless, the Tribunal found that the likelihood of further criminal conduct by the applicant was “extremely low”: T [39]. The Tribunal accepted that the applicant had demonstrated genuine remorse and insight into his offending, and that there was significant evidence of his rehabilitation: T [33]–[36]. In making those findings, the Tribunal relied on expert reports and oral testimony from Mr Patrick Newton, a clinical and forensic psychologist. The Tribunal also referred to the support that would be available to the applicant if he were released into the community (T [39]):

This positive prognosis for the future gains further weight because of the significant level of support the applicant would receive from his family if released into the community. Support would also be provided by the applicant’s ex-partner from Egypt who has written two very supportive statements in favour of the applicant which refer to his expressions to her of remorse which she believes is genuine. Further, the applicant is committed to helping his terminally ill sister and her 5 year old daughter. This gives the applicant a genuine incentive to remain free from drugs and crime and gives him a real purpose in his life. I am confident that he will not re-offend. The likelihood of further criminal conduct by the applicant is extremely low.

16    Whether the conduct engaged in constituted family violence: While accepting that the applicant’s offending had “connotations of family violence” (at T [40]), in so far as it was predicated on the victim’s serious relationship with his sister, the Tribunal observed (at T [41]) that the offending was “not directed against a relative or a woman or someone with whom the applicant was having a relationship”. Accordingly, the Tribunal refrained from making an adverse finding against the applicant for not having engaged in specific programs of rehabilitation related to family violence, in circumstances where he had “engaged in rehabilitative programs that were appropriately connected to his offending”: T [41]. The Tribunal therefore gave this consideration minimal weight, noting that it provided “no additional weight to the weight to be applied towards the seriousness of the offending”: T [41].

17    The best interests of minor children in Australia: The Tribunal found that this consideration weighed heavily in favour of revocation of the cancellation decision: T [46]. While the applicant’s relationship with three of his four nieces and nephews was limited and “non-parental”, the Tribunal gave significant weight to the best interests of the five-year old daughter of his terminally ill sister, with whom the applicant had developed a close relationship: T [43]-[44]. The Tribunal relevantly found in this regard (T [44]):

Further, there is the 5 year old daughter of the applicant’s sister who is terminally ill. The sister gave written and oral evidence to the Tribunal about her illness and how desperate she is to have the applicant released so he can help her with her daughter. In particular, the sister recognizes that she may not have much time to live and she wants the applicant to look after her daughter after her death. … It is most likely, because of the sister’s terminal illness, that the applicant will play a positive parental role for the niece in the future. There is no doubt it would be in the niece’s best interests if the applicant were released. In addition to the direct benefit to her of having the applicant help bring her up both before and after the likely death of the sister, there is the indirect benefit of taking some of the pressure off the sister and her aging parents.

The Tribunal also had regard to the interests of the four-year old daughter of the applicant’s ex-partner, but gave this less weight “because the relationship has involved limited meaningful contact and is non-parental”: T [45].

18    Expectations of the Australian community: The Tribunal found that this consideration weighed against revoking the cancellation decision, but did not give it “determinative weight”: T [49].

19    International non-refoulement obligations: While the Tribunal deferred any assessment of whether the applicant was owed non-refoulement obligations on the basis that it was open to him to apply for a protection visa, it nevertheless had regard to his representations in relation to his fear of harm if removed to Egypt: T [57]. The Tribunal adopted findings that had been made by the delegate, who accepted that there was a real likelihood that the applicant could face a real risk of suffering harm in Egypt which might include harassment, discrimination, torture or other cruel and degrading treatment on the basis of his religion: T [59]–[61], [66].

20    Extent of impediments if removed: The Tribunal found that this factor weighed heavily in favour of revocation of the cancellation decision: T [73]. The limited availability of mental health care and poor health services in Egypt would create significant difficulties for him, which would be exacerbated by discrimination against Coptic Christians: T [70]–[71]. Further, the applicant would find it difficult to establish himself and to maintain a basic living standard in Egypt without any family or social support: T [72].

21    Impact on victims: As there was no evidence before the Tribunal of the impact of the decision on members of the Australian community, including victims of the applicant’s criminal conduct and their family members, the Tribunal treated this factor as neutral: T [74].

22    Links to the Australian community: The Tribunal found that the applicant had “significant links to the Australian community”, having arrived in Australia in 2007 when he was 32 years old: T [75]. The applicant’s parents were Australian citizens, as was his younger sister, and his other relatives lived in Australia as permanent residents: T [17], [75]. The Tribunal accepted that the applicant had made a positive contribution to the Australian community: T [76]. The Tribunal addressed the impact of the decision on his family (T [77]):

The applicant’s family would be significantly impacted if he were not released into the community. His sister is terminally ill and is desperate for him to be released to help her, her mother and her daughter. The sister’s husband (brother-in-law to the applicant) would be adversely impacted by a negative decision because he is struggling to look after their child as well as his terminally ill wife. The applicant’s mother is 69 years old and is awaiting surgery on her arm. She has issues with her knee and neck. She would benefit from his assistance because of her old age and poor health. The applicant’s father is also in poor health and would benefit from assistance. He has been seeing a psychologist since June 2015 under a GP Mental Health Care Plan. The psychologist’s opinion is that his psychological impairments and physical ailments are highly likely to worsen if the applicant is not released. In summary, the applicant’s family are in a very difficult and sad situation which could be significantly improved if the applicant were released so that he could be [with] them.

The Minister’s decision

23    The applicant was released from immigration detention on 24 November 2022, following the Tribunal’s decision to revoke the cancellation of his Partner visa.

24    Over two years later, on 6 January 2025, the Minister made a decision under s 501BA of the Migration Act to set aside the Tribunal’s decision, and to cancel the applicant’s Partner visa. After taking one hour and 15 minutes to consider a Ministerial submission and its attachments, including a draft statement of reasons for decision, the Minister was satisfied that the cancellation was in the national interest and decided to exercise his discretion under s 501BA(2) to set aside the decision made by the Tribunal and cancel the applicant’s visa. On the same date, the Minister signed a Statement of Reasons for his decision.

25    While the Minister recognised that it was open to him to afford the applicant with an opportunity to be heard in respect of the possible exercise of power under s 501BA, the Minister elected not to do so: Reasons at [8].

26    Having found that the applicant did not pass the character test because of the operation of s 501(6)(a) and (7)(c), the Minister turned to consider the question whether cancellation of the applicant’s Partner visa was in the national interest. For such purposes, the Minister said that he considered matters of national interest to “include, among other things, the protection and expectations of the Australian community and the prevention of conduct constituting family violence”: Reasons at [15].

27    The Minister gave the “highest priority to the safety of the Australian community and the need to protect the Australian community”: Reasons at [16]. In that context, the Minister noted that offending involving violence or sexual assault, or otherwise constituting family violence, is viewed very seriously by the Australian community, and observed that the applicant’s offending included “matters falling within the scope” of such a consideration: Reasons at [17]–[19]. The Minister endorsed the Tribunal’s characterisation of the conduct as family violence “as it was predicated upon the victim’s relationship with his sister” and was directed at preventing his sister from maintaining a relationship with the victim: Reasons at [25]. Referring to the findings of the sentencing judge in relation to the objective gravity of the offence and the sentence of imprisonment for seven years, the Minister agreed with the Tribunal’s finding that the applicant’s criminal offending was very serious: Reasons at [24], [26]–[27].

28    In relation to the risk to the Australian community, the Minister’s conclusion on the applicant’s risk of reoffending was as follows:

46.    On balance, I consider there to be a low, but not negligible likelihood that [the applicant] will reoffend and note that should he engage in similar conduct again, it would be likely to result in serious psychological and/or physical harm to members of the community. I consider that the harm that would be caused if it were to be repeated is so serious that any risk that it could be repeated is unacceptable. I have given this consideration weight in support of cancellation being in the National Interest.

29    The Minister stated that, in assessing the likelihood of the applicant reoffending in the future, he had “considered available information as to matters 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 their more recent conduct in custody, where relevant information is available”: Reasons at [29].

(a)    The Minister considered factors contributing to the applicant’s past conduct, including childhood trauma, metal health, drug use, and circumstances at the time of offending: Reasons at [30]–[36]. After having canvassed a range of supporting materials, including the risk assessments conducted by Mr Newton in 2020 and 2022, the Minister found:

36.    I have considered [the applicant’s] circumstances at the time of the offending and, on balance, am prepared to accept that they were contributing factors to his offending. I note that the prospects of [the applicant] avoiding further offending of that nature appears to depend in part on whether he can effectively manage his mental health, emotions and abstinence from illicit substance use.

(b)    The Minister accepted that the applicant’s offending had occurred over 10 years earlier, that he had spent periods on bail and “the last two years in the community” without incident, and that he had “consistently expressed remorse for his offending”: Reasons at [37]. The Minister considered that the weight to be given to the applicant’s remorse was “tempered” by his claim that he acted in self-defence, which had been “contradicted” by the findings made on his conviction and sentencing: ibid.

(c)    The Minister referred to various rehabilitation courses and counselling engaged in by the applicant while he was in prison, his assessment by correctional authorities as “low risk”, and other character references provided by prison staff: Reasons at [39]. The Minister accepted that the applicant had abstained from substance use during his incarceration and detention, and while in the community: Reasons at [40]. The Minister also considered Mr Newton’s assessment that the applicant presented “as a low risk of violent reoffending in the general community”, noting that “Mr Newton otherwise reported that [the applicant] had no ongoing offence specific needs and that his major depressive disorder was not fully resolved and required ongoing treatment”: Reasons at [41].

(d)    The Minister was nevertheless “not prepared to conclude that [the applicant] does not pose an appreciable risk to the community”: Reasons at [43]. In this regard, the Minister stated:

43.    While [the applicant] has the support of family and friends in the community, I give this less weight as a prosocial factor noting these supports were largely available to him at the time of the offending. Moreover, and what remains of concern, is the evidence that some of [the applicant’s] family require ongoing care and support and have indicated an intention to rely heavily on [the applicant] for that support, suggesting he will be subject to significant resulting stress and pressure for the foreseeable future … Those expectations, together with [the applicant’s] own ongoing need for treatment, means I am not prepared to conclude that [the applicant] does not pose an appreciable risk to the community.

(Emphasis added.)

30    The Minister had regard to the expectations of the Australian community that the Government “can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct”, including violent offending that constitutes family violence: Reasons at [48]. The Minister stated that “[t]he Government’s view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community”: Reasons at [49].

31    The Minister was satisfied that the cancellation of the applicant’s Partner visa was in the national interest, having noted that this required “an evaluative judgment” and that the content of the national interest was “in large part a political question”: Reasons at [50], [52]. The Minister summarised the basis on which he had reached his conclusion on national interest considerations as follows:

51.    In the specific case of [the applicant] and his criminal conviction involving violent offending with a weapon, I have considered the nature and seriousness of his conduct and have concluded it is very serious. I have also considered the harm which would result if [the applicant] reoffended and the Government’s concerns regarding violent offending and family violence. I have considered the likelihood of [the applicant] reoffending and while I consider there is a low risk of [the applicant] reoffending in a similar manner, I consider there to be significant resulting harm. For that reason, I consider the harm that would be caused if it were to be repeated is so serious that any risk that it could be repeated is unacceptable.

32    The Minister addressed whether he should exercise the discretion under s 501BA, including whether there were relevant considerations that might support a decision not to exercise the power conferred by that section. In addition to the matters bearing on the national interest, the Minister had regard to the best interests of minor children in Australia, the applicant’s family and social ties to Australia, the legal consequences of the decision, and the extent of any impediments that the applicant would face if he were removed to Egypt. It may be observed that, apart from the primary consideration of the best interests of minor children, these matters broadly correspond to “other considerations” that must be taken into account under the Direction when exercising the power to revoke a mandatory cancellation decision under s 501CA of the Migration Act.

33    The Minister noted the emotional impact of the applicant’s removal from Australia on his nieces and nephews and the daughter of his ex-partner, and found that it was in their best interests not to cancel the applicant’s visa. The Minister nevertheless found that the applicant had a “non-parental” relationship with three of his four nieces and nephews and that there had been “less meaningful contact” with his ex-partner’s daughter. In relation to one of the applicant’s nieces, the Minister relevantly found:

59.     [The applicant] otherwise developed a close and loving relationship with his sister’s daughter [A] through regular contact by telephone ... [The applicant’s] sister has stage four metastatic breast cancer which is terminal. [The applicant’s] brother-in-law does not have a licence, has a number of health conditions including spinal damage and is unable to care for their daughter [A] all the time. Their desire is for [the applicant] to become the primary carer of [A] upon [the applicant’s] sister passing ...

34    Similarly, in considering the impact of cancellation on the applicant’s immediate family in Australia, the Minister found:

66.    As noted above, [the applicant’s] sister has terminal stage four metastatic breast cancer and his brother-in-law has health conditions that prevent him from caring for their daughter. [The applicant’s] sister indicated she needs [the applicant] to support her with activities of daily living and attending medical appointments … [The applicant’s] support to care for [A] would further alleviate the carer burden on his elderly mother, who tries to assist but has her own health problems requiring support … [The applicant’s] father suffers from health conditions including type 2 diabetes and hypertension, and depends on [the applicant], his brother and sister-in-law for support ...

35    The Minister also accepted that the applicant had links to other family members and friends who were part of the Australian community, and had made positive contributions through his employment: Reasons at [68]–[70]. The Minister found that the strength, nature and duration of the applicant’s ties to Australia weighed very strongly against visa cancellation: Reasons at [71].

36    In relation to the legal consequences of the decision, the Minister acknowledged that an unlawful non-citizen was liable to detention and removal under the Migration Act and that, unless a “protection finding” had been made for the purposes of s 197C, it was irrelevant for such purposes whether Australia had non-refoulement obligations towards the unlawful non-citizen. The Minister noted in this regard that the applicant had made representations that he would face a real risk of serious harm for reasons of his religious faith if he were forced to return to Egypt. The Minister accepted that these claims indicated “a potential for Australia’s non-refoulement obligations to be engaged” in relation to the applicant, but noted that it remained open to the applicant to make an application for a protection visa which would enable such claims to be fully assessed: Reasons at [77]. The Minister nevertheless had regard to these claims when considering the impediments that the applicant would face if he were removed to Egypt: Reasons at [82].

37    The Minister accepted that the impediments that the applicant would face in establishing himself and maintaining basic living standards in Egypt weighed strongly against the cancellation of his Partner visa: Reasons at [78]–[83].

38    The Minister’s conclusions were summarised as follows:

84.     I am satisfied that [the applicant] does not pass the character test because of the operation of, in this case, s 501(6)(a) with reference to s 501(7)(c) of the Act. Further, I am satisfied that it is in the National Interest to cancel [the applicant’s] visa.

85.     My discretion to set aside the decision of the AAT and cancel [the applicant’s] visa under s 501BA is therefore enlivened.

86.     In considering the use of my discretion, I have given the highest priority to the safety of the Australian community and the need to protect its safety.

87.     I have found that the best interests of minor child [sic] weigh significantly against cancellation of [the applicant’s] visa. In addition, I have found that a number of other factors also weigh against a decision to cancel the visa. These include the strength and nature of ties to Australia and impediments if [the applicant] were removed to Egypt.

88.     I have considered [the applicant’s] representations as to Australia’s non-refoulement obligations and have found that, notwithstanding the potential for the nature of his claims to indicate a potential for Australia’s non-refoulement obligations to be engaged, it remains open to [the applicant] to make an application for a protection visa. I have therefore afforded this consideration neutral weight.

89.     I have given very significant weight to matters weighing in favour of cancellation. In doing so, I considered the very serious nature of the crime committed and the extent of [the applicant’s] remorse and rehabilitation.

90.     [The applicant] has committed the very serious crime of intentionally cause serious injury involving unprovoked violence with a weapon. Non-citizens such as [the applicant] who have a criminal history of such offences should not generally expect to be permitted to remain in Australia.

91.     I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further criminal conduct by [the applicant]. The Australian community should not tolerate any risk of further harm.

92.     Noting that [the applicant] has lived in Australia for 17 years, I have taken into account that the Australian community may afford a higher level of tolerance of criminal or other serious conduct by [the applicant] than it would otherwise. However, I also recognise that where great harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient to warrant not cancelling the visa.

93.     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. I am of the view that the Australian community generally would expect non-citizens who have a serious criminal history involving violence not to continue to hold a visa, especially where the non-citizen continues to pose a significant risk to the Australian community.

94.     I find that the considerations against cancellation are outweighed by the serious National Interest considerations in this case.

39    The Minister therefore decided to exercise his discretion to set aside the Tribunal’s decision and cancel the applicant’s Partner visa. The applicant was notified of the Minister’s decision on 30 January 2025, upon which he was taken into immigration detention.

THE APPLICATION FOR review

40    By his further amended originating application, the applicant seeks a writ of certiorari to quash the Minister’s decision under s 501BA of the Migration Act, together with a declaration or an injunction to prohibit the Minister from setting aside the Tribunal’s decision pursuant to s 501BA. The second aspect of the relief sought is based on an allegation that the Minister’s power to set aside the Tribunal’s decision under s 501BA has expired because it was not exercised within a reasonable time.

41    The further amended originating application raised six grounds of review.

(a)    By Ground 1, the applicant alleged that the Minister had irrationally or unreasonably failed to give weight to the legal consequences of his decision, being that the applicant would remain in immigration detention until any protection visa application was determined or until he abandoned any such protection application. A separate allegation that the Minister had constructively failed to consider those legal consequences (Ground 2) was not pressed by the applicant.

(b)    Ground 3 alleged that the Minister’s conclusion on the national interest was unreasonable, irrational or illogical “because of findings that the state of affairs as of 23 November 2022 giving rise to a risk the applicant would re-offend had persisted”. In essence, the applicant alleged that the Minister had based his finding that there was an appreciable risk that the applicant would re-offend on evidence that his family members required ongoing care and support and that he had an ongoing need for mental health treatment, when there was no rational basis on which to infer that the state of affairs was the same at the time of the Minister’s decision as it was at the time of the Tribunal’s decision.

(c)    Ground 4 alleged that, in exercising the discretion to set aside the Tribunal’s decision and cancel the applicant’s Partner visa, the Minister unreasonably relied on facts as at 23 November 2022, without providing an intelligible basis on which it could be inferred that the same facts existed or were likely to have existed as at the time of the Minister’s decision. Alternatively, the applicant alleged that the Minister unreasonably failed to consider the likelihood that there had been a material change in the applicant’s circumstances since the date of the Tribunal’s decision, or unreasonably failed to seek new information or afford natural justice to the applicant regarding his personal circumstances as at the time that the Minister made his decision.

(d)    By Ground 5, the applicant alleged that the time taken by the Minister to consider the submission and attached materials was insufficient to engage in an active intellectual process in order personally to exercise the power conferred by s 501BA. Alternatively, the applicant contended that the Minister failed to have regard to the material in the attachments or to consider whether he ought to do so, in circumstances where his Department had indicated that he should “consider all the information” attached to the submission.

(e)    Ground 6 alleged that the Minister failed to exercise the power under s 501BA(2) within a reasonable time after the Tribunal’s decision, such that the power had expired: see XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553.

42    At the hearing, the applicant relied on two affidavits of his lawyer, Dushan Nikolic, affirmed on 27 February 2025 and 28 July 2025 respectively.

43    The Minister relied on an affidavit of Ms Penelle Stern affirmed on 14 July 2025 (Stern affidavit). Ms Stern is the Director of the Revocation and Discretionary Section in the National Character Consideration Centre (NCCC). The NCCC is part of the Character and Cancellations Branch (CACB), which sits within the Character, Cancellation and Case Resolution Division in the Department. The Stern affidavit addressed the processes that existed within the Department during the relevant period for referring cases to the Minister for consideration whether to exercise the power conferred by s 501BA of the Migration Act, and the specific progress of the consideration given to the cancellation of the applicant’s visa.

44    The applicant objected to several paragraphs of the Stern affidavit on hearsay grounds, in circumstances where Ms Stern only assumed her current role in December 2023 and did not work in the Department at all between May 2020 and December 2023. That objection was overruled, on the basis that Ms Stern’s evidence was based on her knowledge of Departmental structures and processes, informed by the records and information held by the Department and her knowledge and experience through her roles within the Department since 1995. Ms Stern was not cross-examined.

45    The Minister also relied on an affidavit of Mr Paul Gordon, a Senior Legal Officer in the Migration and Citizenship Litigation Branch of the Department of Home Affairs, sworn on 24 July 2025 (Gordon affidavit). The Gordon affidavit addressed and annexed the material that was attached to the Ministerial submission in relation to the applicant, which was provided to the Minister for the purpose of considering whether to exercise the power conferred by s 501BA.

Consideration

Ground 1

46    The applicant submitted that the Minister had failed to provide an intelligible explanation for not affording any weight to the legal consequences flowing from the cancellation of his Partner visa, namely, that the applicant would remain in detention while his protection claims were assessed, unless he abandoned those claims and returned to a country where he feared harm. The applicant submitted that the fact that he could subsequently apply for a protection visa did not justify those “adverse human effects” of the decision under s 501BA being ignored or disregarded.

47    It is accepted that, when exercising the power conferred by s 501BA(2), the Minister must have regard to the direct legal consequences of his decision: see e.g. BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600; (2025) 310 FCR 606 at [21]–[23] (Burley J); cf. Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ). As discussed above, the Minister was clearly aware that unlawful non-citizens are liable to detention and removal from Australia under ss 189 and 198 of the Migration Act, provided that such removal is practicable in the reasonably foreseeable future: Reasons at [72]; see also paragraph 17 of the Ministerial submission. The Minister noted that the applicant’s non-refoulement claims could be fully assessed if the applicant made an application for a protection visa: Reasons at [77]. The potential non-refoulement obligations were therefore given “neutral weight”: Reasons at [88]. Nevertheless, the Minister had regard to the applicant’s fears of harm in the context of the impediments that he would face if removed to Egypt, which were given strong weight against the cancellation of his visa: Reasons at [82]–[83].

48    The applicant did not contend that the consequence of his detention pending the determination of any protection visa application was a mandatory relevant consideration that the Minister had failed to take into account. Rather, his argument was that the Minister’s decision was irrational or unreasonable because he did not explain why he did not give any weight to such consequences or circumstances as a factor in favour of a decision not to cancel the applicant’s visa.

49    The appropriate weight to be given to any particular consideration in the exercise of a statutory power is generally a matter for the decision-maker: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (Deane J); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). This is subject to the principles of legal unreasonableness, including that “in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance”: Peko-Wallsend at 41 (Mason J). However, as Mason J further recognised in Peko-Wallsend (at 42), “a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits”. The need for such restraint is manifested in later authorities which emphasise that the threshold for establishing legal unreasonableness amounting to jurisdictional error is “stringent ” and involves more than disagreement with the manner or outcome of the exercise of the power: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] (French CJ), [108]–[109], [113] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (Kiefel CJ), [135] (Edelman J)

50    It was permissible in the present case for the Minister to defer an assessment of potential non-refoulement obligations to the consideration of any protection visa application that might be made by the applicant: Plaintiff M1 at [38]. In adopting that approach, the Minister did not disregard the issues of fact that underpinned the applicant’s non-refoulment claims: cf. Plaintiff M1 at [39]–[40].

51    The applicant’s argument is directed to the consequence that, if he were to apply for a protection visa, he would remain in immigration detention until that application was determined. Alternatively, if he did not apply for a protection visa or withdrew any such application, he would be forced to return to a country in which he claimed to face a real risk of serious harm. It might be open to debate whether those matters are properly characterised as legal consequences of the Minister’s decision to cancel the applicant’s Partner visa under s 501BA, as opposed to factual scenarios that were likely to arise following such a decision. While it can be accepted that a direct legal consequence of the Minister’s decision was that the applicant became liable to detention as an unlawful non-citizen under s 189 of the Migration Act, the Minister was clearly cognizant of that consequence. The duration of any such period of detention was unpredictable, as it would depend on the making and progress of any protection visa application by the applicant, as well as other possible contingencies.

52    In his submissions before this Court, the Minister relied on the decisions in RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 and CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480.

53    In RRFM, the Full Court rejected an argument that the Tribunal had erred by failing to consider the appellant’s submission that he would experience prolonged or indefinite detention as a legal consequence of a decision under s 501CA not to revoke the cancellation of his visa. The Court held that the Tribunal had considered the appellant’s representations regarding the possibility of indefinite detention if he could not be returned to Afghanistan, but was unable to speculate about such a possibility occurring: RRFM at [31]–[32] (Nicholas, Yates and Burley JJ). The Court noted (at [36]–[37]) that “[g]iven that approach, [the Tribunal] was not in any position to attribute any specific weight (eg. substantial or slight) to this consideration”, and it was not required to make any specific finding as to the likelihood that the appellant would experience prolonged or indefinite detention.

54    RRFM involved judicial review of a decision made by the Tribunal under s 501CA, as opposed to an exercise of power by the Minister under s 501BA. The appellant’s complaint was that the Tribunal failed to give “proper, in the sense of legally sufficient, consideration” to the prospect of his prolonged or indefinite detention: see RRFM at [5], [19], [21], [24]–[25]. In particular, the appellant argued that the Tribunal had failed “to assess the chance that he would spend a substantial, if not indefinite, period in immigration detention or the human consequences of that occurring” (at [24]), and that the risk that he might be subject to prolonged or indefinite detention “was not considered in any real sense and not given any weight in the balancing exercise conducted by the Tribunal” (at [25]). The ground of review raised in RRFM was akin to an alleged failure to have regard to a relevant consideration, namely, by failing to engage in an active intellectual process of considering the appellant’s representations regarding the risk of his prolonged or indefinite detention. However, the Court concluded that the Tribunal had actively engaged with the appellant’s representations, notwithstanding that it did not attribute specific “weight” to the possibility of prolonged or indefinite detention due to its speculative nature.

55    A similar conclusion was reached by Raper J in CMP25. In that case, the Minister decided to cancel the applicant’s visa under s 501BA, in circumstances where the applicant was prevented by s 48A of the Migration Act from making a further protection visa application (having previously elected not to pursue an application for review of a decision to refuse to grant him a protection visa). The applicant relevantly submitted that it was legally unreasonable for the Minister not to have given any weight to the legal consequence that the applicant would be liable to detention until his removal from Australia. As noted by Raper J (at [56]–[57]):

The applicant further submitted that it was also unreasonable for the Minister, having identified the legal consequences of a cancellation decision as including the applicant being liable under s 198 of the Act to removal from Australia and in the meantime liable to detention under s 189 of the Act, to not give the legal consequences of the decision any weight.

The applicant conceded that the weight afforded to particular considerations is traditionally a matter for the decision-maker, but submitted that freedom was subject to the implied limitation that a decision be made within the bounds of rationality and reasonableness: Plaintiff M1 at [24]–[25]. In this case however, the applicant submitted, no decision-maker acting reasonably, or logically, could have concluded that the direct and immediate statutorily prescribed consequences of the decision, which comprised the continuing detention of the applicant and his liability for removal as soon as reasonably practicable, did not weigh to at least some extent against cancelling his visa.

(emphasis in original)

56    This argument was rejected by Raper J, who concluded (at [52]) that the Minister was “unwilling to speculate about the likelihood of those matters materialising” and that “[t]he Full Court has recognised no error in such an approach of attributing no specific weight to matters which are not known”, referring to RRFM at [36]–[37]. Justice Raper considered (at [59]) that the Minister’s reasons were “transparent as to as to why he considered the fact of the applicant being taken into detention to neither weigh in favour of, nor weigh against, the applicant”. As her Honour stated at [58]:

[T]he Minister did not place weight on this consideration given the extent of the unknown. … [T]he Minister should be understood to be saying that the applicant’s being taken into immigration detention under s 189 of the Act was a neutral factor because it was not known whether and when there would be “any future full assessment of relevant claims”, which in turn would affect the length of any detention. … It was therefore entirely a matter of speculation (as at the date of the Minister’s decision) as to how long the applicant would be held in immigration detention. Given the length of detention was uncertain … there was no error in the [Minister] not attributing any specific weight to that factor.

57    An appeal from the decision of Raper J was dismissed by the Full Court: CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199 (CMP25 (FC)). The Full Court specifically held that there was no error in the conclusion reached by her Honour that it was not unreasonable, illogical or irrational for the Minister to have given no weight to CMP25’s detention or its effects on his mental health as legal consequences of the decision: CMP25 (FC) at [27]–[32] (Perry, Cheeseman and Shariff JJ).

58    The Minister submitted that, as in RRFM, he was not required to speculate about the period for which the applicant might be detained while any protection visa application was assessed, and was not required to give any specific weight to the possibility of ongoing detention during that or any other period. By reason of s 501E of the Migration Act, the cancellation of the applicant’s visa prevented him from applying for any visa other than a protection visa or, if invited to do so by the Minister, a Bridging R visa: see Migration Regulations 1994 (Cth), regs 2.12AA, 2.20A (as in force at the time of the Minister’s decision). Having expressly adverted to the statutory duty to detain unlawful non-citizens pending their removal from Australia, the Minister can be taken to have understood that the applicant would be detained while any protection visa application was considered.

59    I accept the submissions made on behalf of the Minister. In exercising the power conferred by s 501BA to set aside the Tribunal’s decision and cancel the applicant’s visa, the Minister was clearly aware of the consequence that the applicant was required to be detained until his removal from Australia. The Minister was not required to speculate as to the possibility that the applicant might apply for a protection visa, nor how long it might take for a decision to be made on any such application, nor whether the applicant might be invited to apply for a bridging visa. In such circumstances, it was neither irrational nor unreasonable for the Minister not to attribute any specific weight to the likelihood that the applicant would be detained until the determination of any protection visa application or until his removal from Australia, as a statutory consequence of the cancellation of his Partner visa. While the Tribunal had treated the prospect of further detention as a factor that weighed heavily in favour of revoking the cancellation decision (T [68]), it was open to the Minister to take a different approach to the facts of the case. The applicant’s complaint is essentially directed to the merits of the Minister’s decision.

60    Accordingly, Ground 1 is dismissed.

Ground 3

61    The applicant submits that the Minister irrationally or unreasonably relied on outdated historical material to make findings about the current state of affairs bearing upon the applicant’s risk of reoffending and prospects of rehabilitation as at the time of the Minister’s decision. In particular, this ground challenges findings made by the Minister in relation to the applicant’s responsibilities in providing care and support to members of his family, and his own ongoing need for mental health treatment.

62    As discussed above, when deciding to revoke the cancellation of the applicant’s visa, the Tribunal had regard to evidence about the applicant’s relationship with his sister and her (then) five-year old daughter, as well as his aging parents. The Tribunal treated such matters as weighing in the applicant’s favour.

(a)    In addressing the applicant’s links to the Australian community, the Tribunal found that the applicant’s sister was terminally ill and was “desperate for him to be released to help her, her mother and her daughter”: T [77]. The Tribunal referred to the impact on the sister’s husband who was “struggling to look after their child as well as his terminally ill wife”. Further, the applicant’s parents were facing health problems and would benefit from the applicant’s assistance.

(b)    In giving significant weight to the best interests of the applicant’s niece, the Tribunal found that the applicant’s sister was desperate for assistance from the applicant and that, recognizing that she may not have much time to live, she wanted the applicant to look after her daughter after her death: T [44]. The Tribunal noted that the applicant’s release from detention would have an “indirect benefit of taking some of the pressure off the sister and her aging parents”.

(c)    In finding that the likelihood of further criminal conduct by the applicant was extremely low, the Tribunal found that the applicant’s commitment to helping his terminally ill sister and her daughter gave him “a genuine incentive to remain free from drugs and crime and … a real purpose in his life”: T [39].

(d)    The factors that the Tribunal treated as weighing most heavily in favour of the applicant included “the desperate need for the applicant to assist with the 5 year old niece and the aging parents”: T [85]. The Tribunal considered that that applicant should be released “so that he can start a new life and, most importantly, help his family through what will be difficult times for them”.

63    The Tribunal also had regard to the expert medical opinion of Mr Newton, as contained in his written reports and his oral testimony, that the applicant had been assessed as posing a low risk of future violent offending in the general community: T [37]–[38].

64    Mr Newton had provided three expert reports in relation to the applicant, which were respectively dated 22 July 2020, 30 June 2022 and 10 November 2022. At the time of Mr Newton’s first assessment in June 2020, the applicant was serving his sentence of imprisonment at Margoneet Correctional Centre. At the time of the second and third reports in 2022, the applicant was being held in immigration detention at the Melbourne Immigration Transit Accommodation.

(a)    Relevantly, in his June 2020 report, Mr Newton diagnosed the applicant as having met the criteria for a major depressive disorder that was in partial remission, stating that “while his current symptoms are not severe enough to meet criteria for a major depressive episode, it is clear that his condition is not fully resolved and that ongoing treatment is required”. In this context, Mr Newton considered that the applicant should continue with medical treatment, and that “the provision of psychological counselling would result in further remission of his symptoms”. Mr Newton also stated at this time that the applicant’s “only ongoing rehabilitative needs relate to the ongoing management of his depression and this should be relatively straightforward in a community setting”.

(b)    In his June 2022 report, Mr Newton noted that the applicant’s mental state had “deteriorated markedly since his placement in immigration detention”, and opined that the applicant’s mental state was at risk of further deterioration and that there was “a clear need for ongoing medical and psychological treatment of [the applicant’s] depression”. It may be observed that this opinion was given in response to a question that specifically asked for an assessment of the applicant’s “current psychological condition and presentation” (emphasis added). Mr Newton noted that the applicant had attributed the worsening of his depression to multiple factors including hopelessness about his migration situation, family stressors and environmental factors.

(c)    In his November 2022 report, Mr Newton noted some improvement in the applicant’s mental state, which had “returned to the level of severity he was experiencing when I first reviewed him in 2020”, that is, as continuing to suffer from a major depressive disorder that was in partial remission with the benefit of good counselling assistance. Apart from his concerns about the prospect of a return to Egypt or indefinite detention, the applicant was at this time “very concerned about his sister’s health”, and Mr Newton noted that the applicant “believes, perhaps not unrealistically, that her prognosis is poor and that there is limited time available for him to share with her”.

65    With the exception of an updated National Criminal History Check dated 28 October 2024, which revealed no further offences committed by the applicant, the Minister relied entirely on selected materials that had been before the Tribunal, together with the Tribunal’s reasons for decision. Over two years had elapsed since the Tribunal’s decision, during which time the applicant had been living in the community, apparently without incident.

66    The ministerial submission provided to the Minister acknowledged the two-year period since the Tribunal’s decision, stating under the heading “Sensitivities”:

21.    [The applicant] is located in the community. The index offending occurred in early 2013 and [the applicant] has not reoffended since his release from immigration detention in December 2022.

22.    [The applicant’s] Tribunal decision was in November 2022, over 2 years ago. It is likely that [the applicant’s] circumstances have changed since his submissions were made to the Tribunal. This is particularly relevant to the impact that a cancellation decision would have on his family, specifically his sister who had stage four metastatic breast cancer at the time of the AAT’s decision. If the Minister proceeds to make a decision without inviting [the applicant] to comment on the proposed cancellation, there is a risk that a court may find that it was unreasonable for the Minister not to do so, on judicial review

As discussed below, however, this recognition of the potential impact of changed circumstances was not ultimately reflected in the Minister’s reasons for decision, despite the fact that the draft statement of reasons was included as an attachment to the ministerial submission.

67    The focus of the Minister’s reasons was on matters relating to the protection of the Australian community. Thus, in addressing the national interest, the Minister stated that he had given the “highest priority to the safety of the Australian community and the need to protect the Australian community”: Reasons at [16], [86]. The Minister noted that the applicant’s prospects of reoffending were affected by “whether he can effectively manage his mental health, emotions and abstinence from illicit substance use”: Reasons at [36]. In this context, the Minister departed from the Tribunal’s assessment, giving less weight to the support of the applicant’s family and friends as a “prosocial” factor: Reasons at [43]. In particular, the Minister expressed his “concern” about “the evidence that some of [the applicant’s] family require ongoing care and support and have indicated an intention to rely heavily on [the applicant] for that support, suggesting he will be subject to significant resulting stress and pressure for the foreseeable future”: Reasons at [43] (emphasis added). The reference to “some” members of the applicant’s family in this context must be read as including the applicant’s sister and his parents, given that the observation was based on “the evidence” that was before the Tribunal. The Minister elsewhere referred to the situation of the applicant’s sister in terms which clearly assumed that she had not yet passed away and that her terminal cancer continued to have an impact on the applicant and his family: Reasons at [59], [66].

68    The Minister also referred to Mr Newton’s report that the applicant’s “major depressive disorder was not fully resolved and required ongoing treatment”: Reasons at [41].

69    The Minister’s finding that the applicant posed “an appreciable risk to the community” was based squarely on “those expectations” — that is, the evidence that the applicant was required to provide ongoing care and support to some of his family members — together with the applicant’s “own ongoing need for treatment” (emphasis added): Reasons at [43].

70    These specific findings made by the Minister were directed to the current state of affairs at the time of his decision in January 2025. The findings were critical to the Minister’s assessment of the prospects of the applicant reoffending, which was in turn critical to the evaluation of the protection of the Australian community that was a central basis on which the Minister found that the cancellation of the applicant’s visa was in the national interest for the purposes of s 501BA(2)(b). In particular, the Minister specifically found that, as at the date of his decision:

(a)    the applicant would be required to provide ongoing care and support to some family members, including his terminally ill sister and his elderly parents, which would subject him to significant resulting stress and pressure “for the foreseeable future”; and

(b)    the applicant had an ongoing need for treatment of his major depressive disorder.

71    Even adopting a beneficial construction of the Minister’s statement of reasons, I do not consider that it is possible to read these findings as being limited to the state of affairs at the time of the Tribunal’s decision. Thus, the Minister’s finding in relation to the stress and pressure to which the applicant would be subject cannot fairly be construed as meaning that there was evidence that he would have been subject to such stress and pressure for the foreseeable future following the Tribunal’s decision. The Minister was identifying what “remains of concern”, and found that the applicant “will be subject to significant resulting stress and pressure for the foreseeable future” (emphasis added). Similarly, the Minister’s finding in relation to the applicant’s “ongoing need for treatment”, albeit based on the opinions expressed by Mr Newton at least two years earlier, was clearly made in the context of an assessment of current and future risk to the community: compare Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [95] (Neskovcin J).

72    Accordingly, this is a case in which the Minister based his decision on specific findings of current facts, relying only on evidence of facts and circumstances that existed over two years before the Minister’s decision. The matters to which that evidence was directed were inherently transient or variable in nature. The circumstances of the applicant’s sister and her daughter and their support needs were likely to have changed. As at November 2002, the sister’s breast cancer had metastasised into her bones, liver and shoulders, and her diagnosis was terminal. There was therefore a strong possibility that she might have died in the two-year period since the hearing before the Tribunal. There might also have been material changes in the circumstances of his elderly parents, assuming that they were still alive, which could affect any demands that may be placed on the applicant. The applicant’s mental health condition might have changed significantly since his release from detention, which might conceivably affect the nature and extent of any ongoing needs for treatment.

73    The power conferred by s 501BA has been variously described as “exceptional” (DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [12] (Rares J)) and even “draconian” (Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 at [14] (Mortimer J)). Within the statutory scheme of closely interrelated provisions governing the refusal and cancellation of visas on character grounds, s 501BA reflects a legislative intention that questions of national interest are ultimately for determination by the Minister personally: see generally XMBQ at [58] (Horan J); Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 at [20]–[22] (Colvin J). In contrast to other provisions involving decisions made personally by the Minister (such as ss 501(3), 501A(2) and (3), 501B and 501C), however, the power conferred by s 501BA can be exercised without affording the visa holder either an opportunity to be heard prior to the decision or an entitlement to seek revocation of the decision after it has been made.

74    The power under s 501BA(2) does not depend on a review by the Minister of the reasoning and findings of the delegate or the Tribunal in making the original decision: GFE24 v Minister for Immigration and Citizenship [2025] FCAFC 165 at [11]–[13] (Jackman J, with whom Collier J agreed), [31], [38]–[40] (Younan J). While the Minister can have regard to the reasons given and findings of fact made by the delegate or Tribunal, it is not necessary for the Minister to disagree with those reasons nor to rebut the findings of fact made in the original decision: Tereva at [28] (Mortimer J); CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [17], [32]–[34] (Owens J). Rather, the Minister must be satisfied that it is in the “national interest” to set aside the original decision and cancel the visa.

75    In Moli, Colvin J considered that this requires the Minister “to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why”, including by identifying “some aspect of the national interest that means the ordinary merits adjudication process should not determine whether the person has a visa” such that the outcome of that process (being a decision made in accordance with a legislative scheme that is itself enacted in the national interest) should be reversed: Moli at [105], [110]–[111], [117]. I note that the relevant passage from Colvin J’s judgment was cited with approval by the Full Court on appeal: see Moli v Minister for Immigration and Citizenship [2025] FCAFC 175 (Moli (FC)) at [7]. Derrington, Raper and Vandongen JJ stated (at [10]):

The primary judge considered that the mere identification of a matter of national interest is not enough in order to form the requisite state of satisfaction required as a pre-condition to the discretionary power to cancel the non-adverse decision made by the Tribunal to revoke the cancellation of Mr Moli’s visa. What must be formed is an affirmative state of satisfaction that the cancellation of Mr Moli’s visa is “in” the national interest, even though there has been a decision on the merits in accordance with the legislative scheme that the cancellation of his visa should be revoked: PJ [117]. We respectfully agree.

76    On the other hand, it has been consistently recognised that the concept of “national interest” for the purposes of the Migration Act is broad and evaluative, and “does not readily lend itself to the compartmentalisation of the considerations involved”: Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6 at [31]–[32] (Charlesworth, Kyrou and Neskovcin JJ); see also Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [43]–[44] (Derrington and Hespe JJ); CMP25 (FC) at [23] (Perry, Cheeseman and Shariff JJ); Moli (FC) at [16] (Derrington, Raper and Vandongen JJ).

77    In the present case, the Minister seems to have approached the exercise of his power under s 501BA(2) as turning largely on whether the applicant’s visa should be cancelled by reference to the considerations set out in the Direction, albeit overlaid with findings about the “national interest”. The Minister did not explicitly identify any particular aspect of the national interest that warranted the reversal of the Tribunal’s decision as the outcome of the “ordinary merits adjudication process” under the legislative scheme: cf. Moli at [110] (Colvin J); Moli (FC) at [10] (Derrington, Raper and Vandongen JJ).

78    Irrespective of whether there is an implied temporal limit on the exercise of the power under s 501BA, it is common ground that s 501BA is subject to an implied condition requiring the power to be exercised in accordance with the principles of legal reasonableness: see e.g. Luong at [42]–[44] (Charlesworth, Kyrou and Neskovcin JJ). It can be accepted that the rules of natural justice do not apply, and the Minister is not required to obtain and consider recent or updated material in order to afford procedural fairness: see e.g. EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492 at [37], [64] (Abraham, O’Sullivan and Raper JJ); GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [43] (Bennett J); Luong at [47]–[48] (Charlesworth, Kyrou and Neskovcin JJ). Nevertheless, the Minister’s decision must still be one that could be made by a rational or logical decision-maker.

79    Whether or not the purpose of the power conferred by s 501BA requires it to be exercised within a reasonable period (see Ground 6 below), analogous issues can arise in the application of legal unreasonableness principles. The longer the period between the Tribunal’s decision and the exercise by the Minister of the power to set aside that decision and cancel the visa under s 501BA, the more difficult it may become for the Minister to base his or her decision on findings about current facts and circumstances without obtaining further material that is probative of such matters.

80    In LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209, the Minister had identified the applicant’s prospects of rehabilitation and the interests of his minor children as matters that were relevant to the national interest. In such circumstances, Charlesworth J observed (at [46]) that the Minister was required to make findings about those matters in reaching the requisite state of satisfaction under s 501BA(2)(b), and that this essential fact-finding aspect “was itself to be undertaken within the bounds of legal reasonableness”. After noting that it was necessary for the Minister to make a finding about what was in the national interest as at the date of the decision, Charlesworth J continued (at [48]):

The temporal requirement in s 501BA(2)(b) does not change depending on the extent to which the evidentiary material before the Minister in a given case is out of date. 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.

81    On the particular facts in LJTZ, one of the ways in which the Minister was held to have fallen into error was by making a positive finding that the applicant had not engaged in any rehabilitative efforts in relation to his abuse of alcohol, in circumstances where that finding was “not open to be made in light of the materials referred to”: at [99]. Further, the Minister had repeated a finding made by the delegate in an earlier decision that it had “not yet been established” whether the applicant would continue with recommended treatment in the community. In upholding this ground of review, Charlesworth J relevantly stated (at [100], [103]):

Again, it must be emphasised that it is permissible for the Minister to exercise the power in s 501BA(2) without first affording the affected visa holder an opportunity to be heard. However, if that course is taken, a practical consequence may be that there is an absence of evidence (or at least a gap in the evidence) bearing on a topic the Minister considers to be relevant. That absence or gap may limit the reasoning processes that are reasonably open to the Minster. For example, it may not be permissible (that is, within the bounds of legal reasonableness) for the Minister to proceed as though he has before him everything the applicant may have to say on the topic to the present day. It may not be permissible in the requisite sense to draw inferences about a current state of affairs by reference to an earlier state of affairs. It may not be logical to draw a positive inference that an event has not occurred merely by reference to the absence of evidence as to whether or not it has in fact occurred. I am satisfied that errors of those kinds occurred in the applicant’s case.

…

Again, speaking in the abstract, it may well have been open to the Minister to draw inferences about the likely current state affairs on the basis of what was known about the past, but that is not a course of reasoning he in fact adopted.

82    Justice Charlesworth accepted a submission that the reasoning adopted by the Minister “could only be permissible (that is, within the bounds of legal reasonableness) if the applicant had been afforded the opportunity to furnish evidence going to the topic, or if evidence on the topic had otherwise been obtained by the Minister or put before him”: LJTZ at [106]. Her Honour continued:

Again, I should not be understood to say that the Minister was obliged to afford the applicant natural justice. The error lies in the Minister proceeding from the fictional footing that the applicant’s dated statements about his past circumstances represented all that he had to say about his current circumstances, and in reasoning from the absence of evidence about the outcome of medical treatment to the positive conclusion that there were none.

83    A similar ground of review was upheld by Bennett J in GRCF. In that case, in exercising the power under s 501BA, the Minister made findings, in the context of the applicant’s remorse and rehabilitation, that the applicant had not continued seeking psychological treatment or counselling to address his mental health issues: GRCF at [45]–[50]. The finding, which was ostensibly based on documents that had been provided to the Tribunal, was interpreted as the Minister having “proceeded on the positive basis that the position as it was 10 months earlier persisted at the time of his decision”, and that the applicant’s attitude “had remained the same since evidence on that question was given 10 months earlier”: GRCF at [51]–[52]. This was not simply drawing a logical conclusion or inference from incomplete information. Rather, Bennett J held that these findings “were lacking in an evidentiary foundation”, in that the Minister had not referred to “any evidence that would constitute a logical basis to infer that the Applicant had not sought that treatment in the 10 months immediately preceding his decision”: GRCF at [52].

84    Accordingly, Bennett J held in GRCF (at [53]–[54]) that the Minister had fallen into erroneous reasoning of the kind that was identified by Charlesworth J in LJTZ at [100], namely:

In making the Rehabilitation Findings, the Minister has 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.

(emphasis in original)

As Bennett J earlier observed (at [42]) in distinguishing the facts of LJTZ, where the Minister relied on dated material in circumstances where up-to-date information was actually or constructively before him:

In this case, the Minister did not have up-to-date information before him. This case does not concern inferences arising from the 10-month-old evidence: it concerns a conclusion by the Minister that a certain factual situation persisted, without considering whether the age of the evidence made it safe to so conclude. Put another way, the Applicant argued that the Minister proceeded on the basis that the information was up to date, when it was not. This is distinct from the Minister proceeding on the basis of information which he knows to have been accurate at an earlier point in time, but has chosen not to update.

85    Justice Bennett recognised in GRCF that it is permissible for the Minister in some circumstances to reach a conclusion based on evidence that was produced at an earlier point in time, notwithstanding that it is not complete or up-to-date, so as to infer matters about the present in a logical manner: at [57]. However, what is not permissible is to extrapolate from the position at an earlier date by making assumptions about what the applicant has or has not done in the intervening period, without any rational or logical basis or evidentiary support.

86    In my view, the present case is a manifestation of the same kind of legal unreasonableness that was found in LJTZ and GRCF. It was not legally open for the Minister to make the specific findings of fact identified in paragraph [70] above. Those findings were directed to current and future demands on the applicant in providing support to his family members, based on historical evidence of their specific needs at a point in time over two years earlier. The finding that the applicant had an ongoing need for mental health treatment as at the time of the Minister’s decision was based on an opinion given about the applicant’s psychiatric condition several years earlier in very different circumstances. These were not simply findings in relation to past circumstances as they existed at an earlier point in time, nor an inference drawn from such circumstances. The Minister was not “proceeding on the basis of information which was correct at the date of the Tribunal’s decision, but which he chose not to update”, but rather was “proceeding on the basis that the position which obtained at the time of the Tribunal’s decision continued at the time of the s 501BA decision”: cf. Fetelika v Assistant Minister for Immigration [2025] FCA 1249 at [54]–[56] (Goodman J); see also, e.g., Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 at [50], [54]–[56] (Wheatley J).

87    Thus, the Minister made unfounded assumptions as to the continued existence of past circumstances, without any logical or rational basis on which to infer that those or similar circumstances would still exist at the date of his decision. Further, the findings were essentially treated as matters adverse to the applicant’s case, in support of a conclusion that the Minister was “not prepared to conclude that [the applicant] does not pose an appreciable risk to the community”: cf. Luong at [101]–[102] (Charlesworth, Kyrou and Neskovcin JJ).

88    The decision of Raper J in CMP25 can be distinguished. In that case, the Minister’s decision under s 501BA was made eight months after the Tribunal’s decision revoking the cancellation of CMP25’s visa. The Court held that the Minister’s decision was not legally unreasonable, despite the absence of any recent or updated risk assessments in relation to CMP25’s remorse and rehabilitation as at the time of the decision. The Minister in that case did not misunderstand the state of the evidence, and did not incorrectly proceed “on the basis that he had before him everything that the applicant had to say on the topic to the present day”: CMP25 at [80], [85]. On the particular facts in that case, when assessing and making findings on CMP25’s risk to the community, the Minister was able to rely on the material that was before the Tribunal. Justice Raper distinguished the decision in LJTZ on its facts, stating that “[h]ere the Minister had considered all material before him on the issue, did not say that he had considered material which he had not and was not mistaken as to the currency of the material before him”: CMP25 at [90]; see also CMP25 (FC) at [46]–[48] (Perry, Cheeseman and Shariff JJ).

89    For the reasons set out above, the present case is more analogous to LJTZ and GRCF than to the facts of CMP25. On the material before the Minister, it was irrational to assume that the applicant had significant caring responsibilities and ongoing mental health treatment needs as at the time of the decision, based on evidence of past circumstances which were patently of a limited temporal duration. It remains possible that, at the time of the Minister’s decision, the applicant remained under stress or pressure due to his current family circumstances or continued to have ongoing mental health needs. However, without any further information, these possibilities were entirely speculative. The Minister argued in this Court that it was a “logical extrapolation” from the evidence that, even if the applicant’s sister had since died, he would have assumed parental responsibilities for his niece and his elderly parents would have still required ongoing care and support. However, this is an ex-post facto rationalisation which is not reflected in the Minister’s actual reasoning process when making his decision.

90    Accordingly, in my view, the findings made by the Minister were not based on any evidence nor supported by logical grounds on which inferences could properly be drawn. As the facts were material (if not critical) to the Minister’s decision, it was not possible for the Minister to be satisfied logically and rationally on the available material that the cancellation of the applicant’s visa was in the national interest for the reasons that were given: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]–[35] (Allsop CJ, Besanko and O’Callaghan JJ); Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [51]–[52], [54] (Markovic, Meagher and Kennett JJ); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131 at [64]–[65] (Markovic, Cheeseman and Horan JJ); EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128 at [34]–[36] (Hill J), cf. at [5] (Cheeseman and Owens J).

91    In other words, the Minister’s decision “is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question”: Djokovic at [34]. Such an error self-evidently meets any threshold of materiality necessary to constitute jurisdictional error: Masi-Haini at [52]. In any event, the error clearly deprived the applicant of a realistic and non-fanciful possibility of a different outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 82; (2024) 304 FCR 244 at [55]–[63] (Collier ACJ, Meagher and Horan JJ).

92    Ground 3 is therefore upheld.

Ground 4

93    Ground 4 is directed to the Minister’s findings on the applicant’s ties to the community, the best interests of minor children, his risk of reoffending, and the impediments to his removal to Egypt. The applicant contends that those findings were legally unreasonable, irrational and illogical in so far as they were based on facts as at the time of the Tribunal’s decision in November 2022, without considering the likelihood that the applicant’s circumstances had since changed.

94    The arguments advanced in support of this ground overlap with those in respect of Ground 3, but with a particular focus on the Minister’s findings in relation to considerations other than the protection of the Australian community. This includes matters such as the strength, nature and duration of the applicant’s ties to Australia, his relationships with his nieces and nephews and the daughter of his ex-partner. It may be observed that most of those matters were given significant weight in the applicant’s favour, that is, against the cancellation of his Partner visa.

95    The applicant submitted that the Minister failed to consider whether his ties to the community and his relationship with the children might have strengthened during the two years that he had spent in the community since his release from detention following the Tribunal’s decision. In such circumstances, the applicant submitted that it was irrational for the Minister to have assessed these matters based on outdated information, without at least contemplating the possibility of a material change in the applicant’s personal circumstances. Alternatively, the applicant argued that it was unreasonable for the Minister not to have elected to give the applicant an opportunity to be heard and to provide further relevant information.

96    As discussed above, the length of the period between the Tribunal’s decision and the exercise of power under s 501BA(2) can have implications for the fact-finding process engaged in by the Minister. Nevertheless, it remains open to the Minister to proceed on the basis of incomplete or outdated information, at least provided that he or she does not incorrectly assume that the material is contemporaneous, or impermissibly extrapolate positive findings about facts at the date of the decision that are not open on the available evidence: see GRCF at [59]–[60] (Bennett J); cf. CMP25 at [91]–[92] (Raper J); Fetelika at [57]–[67] (Goodman J).

97    In the present case, the Minister acknowledged that the applicant had been living in the community without incident during the two years since the Tribunal’s decision: Reasons at [37], [40]. When considering the best interests of minor children and the applicant’s ties to Australia, it was not irrational for the Minister to have regard to the evidence that was before the Tribunal, and there was no legal requirement for the Minister to obtain updated information about those matters for the purposes of exercising the power under s 501BA. While it was possible that there had been changes in circumstances relevant to these considerations since the date of the Tribunal’s decision, the Minister did not misapprehend the limitations of the material and there was no requirement to make findings about the current situation as at the date of the decision.

98    In so far as the applicant contends that the Minister unreasonably failed to obtain further information from the applicant about any changes in his circumstances, s 501BA(3) excludes the application of the rules of natural justice to a decision made under s 501BA(2). In my view, an obligation to obtain up-to-date information about these matters cannot be implied from the principles of legal reasonableness: compare CMP25 at [85] (Raper J); Luong at [41], [47] (Charlesworth, Kyrou and Neskovcin JJ).

Ground 5

99    The Minister indicated in the decision record that the total time taken to consider the ministerial submission and its attachments was one hour and 15 minutes. The submission itself was five pages in length. Together with the decision page and a 13-page draft statement of reasons, the attachments included “relevant material” comprising 513 pages.

100    The applicant contends that time spent by the Minister in considering the submission and attachments was insufficient for him to draw necessary inferences about the applicant’s current circumstances, including whether or not the circumstances as at the date of the Tribunal’s decision were likely to persist as at the date of the Minister’s decision. In this regard, the applicant sought to put in issue whether the Minister had in fact personally made findings of fact concerning the applicant’s current circumstances, as opposed to having “delegated” the task of assessing the national interest by adopting inferences made by Departmental officers.

101    Alternatively, the applicant submitted that the Minister was obliged to read and consider the attachments to the submission in their entirety, in circumstances where the Department had advised him that he “should consider all the information contained in the index and attachments … before coming to your decision”, and the Minister stated that he “had regard to the documents provided by the Department”: Reasons at [3].

102    For completeness, I note that the “options” set out on the signature page of the Ministerial submission were introduced with the chapeau, “After considering this submission and all of the attachments …” (emphasis added). If the Minister chose to consider cancellation under s 501BA without natural justice, he was asked to record his decision on and sign an attached “Decision Page” and, if he agreed with the reasoning set out in the attached draft statement of reasons, sign that statement with any amendments he considered necessary. The Minister signed both the Decision Page and the draft statement of reasons, without making any amendments.

103    The Minister was entitled to rely on a summary of the relevant materials contained in the submission and the draft statement of reasons, provided that the summary was accurate, complete and fair: compare Minister for Immigration v McQueen (2024) 98 ALJR 594 at [4], [18]–[19], [28], [33] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ), [49], [54] (Jagot and Beech-Jones JJ), in relation to a decision made under s 501CA(4) of the Migration Act. The applicant does not contend that the attached materials were inaccurately or incompletely summarised in the submission and draft reasons: cf. McQueen at [38]. While the power conferred by s 501BA(2) must be exercised by the Minister personally, it is not suggested that s 501BA expressly or impliedly obliges the Minister directly to read and understand particular documents or submissions: cf. McQueen at [25]. Contrary to the applicant’s submissions, reliance by the Minister on a departmental summary of relevant material did not amount to a delegation of any part of the power exercised by the Minister: cf. McQueen at [19] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ), [49] (Jagot and Beech-Jones JJ); see also Peko-Wallsend at 65–66 (Brennan J).

104    It cannot be suggested that the Minister was unable to consider the submission and draft reasons in a 75-minute period, including consideration of whether to refer directly to any of the particular attachments that were identified and cross-referenced in the submission and draft reasons. As indicated in his statement of reasons, the Minister “had regard to the documents provided by the Department” (emphasis added). This does not contemplate that the Minister had read and considered each individual attachment. Having regard to the decision record as a whole, I find that the Minister read at least the submission and the draft reasons, but did not attempt to read the attached relevant material in its entirety: compare Ba at [53]–[54] (Neskovcin J); BQQ25 v Minister for Immigration and Citizenship [2025] FCA 1279 at [59]–[62] (Hill J). This level of engagement was sufficient for the Minister to understand and assess the merits of the applicant’s case in deciding to exercise the power under s 501BA: see, e.g., Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192 at [40]–[42], [72]–[74], [110] (Kyrou and Needham JJ).

105    In so far as the Department advised the Minister that he should consider all of the materials attached to the submission, this did not dictate that the Minister was obliged to read each and every attachment before making his decision. Rather, it was sufficient that the Minister was able to turn his mind to whether or not it was necessary for him to refer to that material directly: see McQueen at [22], referring to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [61], [125], [138] (Griffiths, White and Bromwich JJ).

106    Ground 5 is therefore dismissed.

Ground 6

107    In XMBQ, I concluded that the power conferred by s 501BA(2) of the Migration Act is subject to an implied temporal limitation requiring it to be exercised within a reasonable time after the original decision of the delegate or the Tribunal to which the power is directed. The Minister submitted that this conclusion was wrong, and has appealed the decision in XMBQ to the Full Court. Nevertheless, as in several recent first instance proceedings before single Justices of this Court, the Minister did not seek to reopen the decision on the construction of s 501BA for the purposes of the present application: see Hood v Assistant Minister for Immigration [2025] FCA 1336 at [21] (Kennett J); Song v Minister for Immigration and Citizenship [2025] FCA 1351 at [64] (Hill J).

108    The applicant submitted that the Minister failed to exercise the power under s 501BA(2) within a reasonable time after the Tribunal’s decision, such that the power was exhausted or spent and the Minister’s decision was beyond jurisdiction. The Minister submitted that, if s 501BA(2) is subject to an implied temporal limitation, there was no unreasonable delay on the facts of the present case.

109    The original decision by the Tribunal to revoke the mandatory cancellation of the applicant’s Partner visa was made on 23 November 2022. The Minister’s decision under s 501BA(2) to set aside the Tribunal’s decision and cancel the applicant’s Partner visa was made on 6 January 2025, that is, about two years and six weeks after the Tribunal’s decision.

110    The Minister relied on the Stern affidavit to provide an explanation of what occurred within the Department during this period in relation to the possible exercise of the power under s 501BA to set aside the Tribunal’s decision. The Minister’s submissions sought to distinguish between two relevant periods:

(a)    the 18-month period from about 16 December 2022 until 20 June 2024, which the Minister accepted was characterised by inactivity in respect of the applicant’s case specifically, but which he submitted could be “reasonably explained by resourcing constraints and competing priorities within the Department”;

(b)    the six-month period from about 20 June 2024 until the Minister’s decision on 6 January 2025, during which the applicant’s case was triaged and sent to the Minister for consideration, and a decision was made.

111    The following is a summary of the evidence given by Ms Stern. I note that evidence to similar effect was given by Ms Stern in Hood and Song respectively. Unlike in those cases, however, the applicant in the present proceeding did not cross-examine Ms Stern on her affidavit.

The structure of the Department

112    At the time of the Tribunal’s decision, the CACB comprised the NCCC, the Complex and Controversial Cases Section (CCCS), the General Cancellations Network, and Character and Cancellation Program Management.

113    The NCCC was responsible for matters relating to the refusal or cancellation of visas on character grounds. At the time of the Minister’s decision, it was divided into the following sections: Revocation and Discretionary; Visa Applicant Character Consideration Unit; Character Cancellations, Assessments, Referrals and Support; and Character Delegates. There were approximately 120 full-time staff working in the NCCC, although the number has fluctuated up and down over the relevant period. Ms Stern stated that the NCCC’s current “case load” comprised approximately 7,000 cases, and generally continues to grow.

114    The Revocation and Discretionary section of the NCCC was responsible for processing cases identified for assessment under the character provisions of the Migration Act. It comprised a team of approximately 45 people who were managed by Ms Stern. The section was responsible for drafting and preparing submissions for the consideration of delegates in relation to the exercise of discretionary cancellations and revocation requests, and submissions for the consideration of the Minister personally to cancel a visa. The section was also responsible for conducting “sweeps” following significant legal decisions in order to identify any clients in the immigration detention network who may be affected by those decisions.

115    As at November 2022, subject to any application for judicial review, a decision by the Tribunal under s 501CA(4) to revoke an original cancellation decision would be referred to CCCS for “triaging and assessment” in respect of whether the Minister should exercise the power under s 501BA(2) in respect of the Tribunal’s decision. Ms Stern stated that CCCS was a “small team” and that “resourcing of this team was a perennial issue”. Staff numbers fluctuated between around eight to 13 people, of whom between one and three officers were responsible for the triage and assessment of Tribunal “set aside” decisions. On average, the triage and assessment function was assigned to two officers during the relevant period. Those officers could also be tasked with other responsibilities within CCCS, including the processing of character cancellations and refusals for “controversial” cases with high media interest. Ms Stern stated that the Department’s budget was not unlimited, and that CACB competed for funding against other high priority functions within the Department. She further stated that officers required significant training and experience to perform the functions that were carried out by the CCCS team, which could be “legally complex”.

Referral of cases for the Minister’s personal consideration

116    The Department has adopted a risk-based approach under which it employs a series of “thresholds” to determine which cases should be referred to the Minister for consideration whether to exercise personal powers to set aside a decision of the Tribunal. Such thresholds do not prevent the Minister from requesting from time to time that particular cases be brought to his attention, nor do they prevent the Department from referring other cases to the Minister’s attention.

(a)    As at February 2020, the applicable thresholds required the referral of the following categories of case to the Minister for consideration:

•    Where there is a serious and imminent risk to the Australian community or an individual, including:

•    Serious violent or sexual offences, particularly against women or children

•    Substantial criminal record

•    Disregard for Australian laws, i.e. breaching bail conditions, continual reoffending

•    Where the non-citizen been convicted or found guilty of a violent and/or repeated domestic violence offence(s).

•    Where the AAT's decision is inconsistent with community expectations, including:

•    Historic offending that is serious in nature, including murder and sexual assault

•    Serious identity and/or fraud concerns

•    Where there are other exceptional circumstances, including:

•    Significant media interest

•    High profile case

(emphasis in original)

(b)    In March 2023, the Minister endorsed new referral thresholds for the following categories of case:

•    Where there is a very serious ongoing risk to the Australian community based on abhorrent violent, sexual, child sex or family violence offending which generally resulted in a substantial term of over 10 years imprisonment

•    Historic offending that is repugnant in nature to the Australian community, such as offences causing the death of a person or child sex offending where such does not equate with Australian community values bearing in mind long term residence.

•    Exceptional circumstances, including significant media interest, significant victim or community issues

•    High profile involvement in organised criminal activity or syndicates, including Outlaw Motorcycle Gangs

117    Ms Stern stated that the adoption of the March 2023 referral thresholds had resulted in a reduction of the number of cases referred to the Minister for his personal consideration. This is consistent with predictions in a Ministerial submission in relation to the management of the Tribunal set aside caseload, which had estimated that the percentage of cases referred to the Minister for consideration under s 501BA would drop to 10 per cent (from approximately 20 per cent under the February 2020 referral thresholds). The Ministerial submission also noted that the time taken to complete the triage and assessment process under the previous thresholds had meant that “it is possible that a non-citizen will reside in the community for several months after their release from detention as a result of a positive AAT decision until a decision is made by the Minister personally” (emphasis added).

118    The Ministerial submission stated that, as at 30 September 2022, approximately 70 cases had been assessed as meeting the February 2020 referral thresholds, or had otherwise been specifically requested by the Minister for personal consideration, and that there were approximately 450 cases requiring assessment by the Department.

119    Ms Stern stated that cases were not triaged in chronological order. Rather, during the relevant period, certain cases were prioritised or expedited, including cases involving persons in immigration detention (particularly during the COVID-19 pandemic); persons who had been the subject of an adverse security assessment; persons who were associated with organised crime and outlaw motorcycle gangs; and persons who had been involved in family violence. The priority given to individual cases was also affected by other factors, such as ongoing or potential litigation, location, seriousness of offending, the length of time since the Tribunal’s decision, the status of any other ongoing matters within the Department, any external scrutiny (such as an investigation by the Commonwealth Ombudsman or the Australian Human Rights Commission), and any compassionate or compelling circumstances.

120    Ms Stern gave evidence in relation to the time taken to complete a thresholds assessment. She stated that each “full” thresholds assessment might ordinarily be expected to take one to two days of uninterrupted work, if there were no complicating factors. As each officer would potentially have hundreds of “open” cases at any given time, it was common for them to work intermittently on individual cases, progressing them as and when resources permitted.

121    Once a case had met the referral thresholds, or the Minister had otherwise indicated that he wished to consider the exercise of his personal powers, the Revocation and Discretionary section of the NCCC was responsible for preparing a Ministerial submission and collating its attachments. In Ms Stern’s experience, such a submission could ordinarily be drafted within two to six weeks, depending upon the complexity of the matter and the volume of documentary material to be considered. Ms Stern said that preparation of the Ministerial submission could be interrupted by various circumstances, “including a need to source further information, a need to await legal advice, put adverse information to a person where required, and/or a need to await the outcome of pending legal proceedings”.

122    Between November 2022 and January 2025, the Minister’s office was provided with updates on the caseload at scheduled weekly meetings, focusing on cases that had been assessed as meeting the referral thresholds which were included in a schedule or “client brief”. Such meetings did not occur consistently, and were subject to other competing priorities in the Character, Cancellation and Case Resolution Division. Following each such meeting, Ms Stern would be sent an email summarizing the outcome of the meeting and identifying cases in which full submissions were to be prepared. After 1 June 2024, the Minister’s office requested that full submissions be prepared for all cases that were assessed to meet the referral thresholds, which led to an increase in the workload of Ms Stern’s section.

Resourcing constraints

123    Ms Stern stated in her affidavit that the “[r]esourcing for the Department’s character and cancellations functions has not kept pace with the rapidly growing caseload in this space”. She said that these general resourcing constraints had caused delays and backlogs across CACB during the relevant period, which affected the processing of the applicant’s case.

124    As at November 2022, there was a “backlog” of approximately 500 cases which were yet to be assessed against the referral thresholds. This included cases arising under s 501BA, as well as cases arising under s 501A and the Minister’s personal powers under the general cancellation provisions (ss 133A and 133C). Ms Stern stated that this backlog subsisted during the relevant period, albeit with a drop in active cases following the adoption of the March 2023 referral thresholds.

125    Ms Stern stated:

The time taken to complete the triage, threshold assessment, and referral processes in the months and years following November 2022, was often quite significant, even if the actual time taken to for an officer to complete that assessment was – in absolute terms – fairly short.

126    In this context, the resources of CACB were focused primarily on non-citizens in immigration detention with unresolved requests under s 501CA(4) for revocation of a mandatory cancellation decision. Ms Stern said that work on other matters continued, but was of a lower priority, and the size of the “AAT set aside” caseload increased. On 25 May 2024, “surge activity” had commenced within CACB with a view to alleviating this continued backlog.

Institutional change and changes in Ministerial policy

127    Ms Stern referred to the appointment of new Ministers in July 2024, which was followed by periods of “detailed consultation” and briefing. Ms Stern said that such changes had “interrupted [the Department’s] ability to process and consider cases as swiftly as it otherwise might have”, and had “a considerable impact on day-to-day case work in CACB”, particularly in relation to decisions involving the Minister’s personal powers.

128    In addition, new Ministerial directions under s 499 of the Migration Act were issued on 23 January 2023 and on 7 June 2024. In the period between the making and commencement of a new Direction, case officers concentrate on matters that can be finalised before that commencement with a focus on non-citizens in immigration detention. After a new Direction has commenced, cases are generally put “on hold” until its impact is assessed and templates are updated and cleared. Changes to Ministerial directions therefore generally have a significant impact on NCCC case officers and their work, which may require the redeployment of staff to alleviate the workload.

Impact of case law

129    Ms Stern stated that the work of CACB is “susceptible to significant disruption” following judicial decisions, which require officers to conduct “sweeps” of the relevant caseload in order to identify and address potentially affected cases.

130    Ms Stern said that such decisions were a “significant feature” during the relevant period from November 2022 to January 2025, referring to the decisions in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177, Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91; (2023) 298 FCR 57; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 281 CLR 1.

131    On each occasion, Ms Stern said that CACB was required urgently to review a number of cases in order to identify those who were affected by the decision, and in some cases to divert resources to responding to the decision (including by obtaining legal guidance, training staff, updating and revising templates, and developing and implementing any legislative responses).

Progression of the applicant’s case

132    Ms Stern gave the following evidence regarding the progress of the applicant’s case between the date of the Tribunal’s decision (23 November 2022) and the decision made by the Minister on 6 January 2025.

133    On 24 November 2022, the details of the applicant’s case were recorded in a spreadsheet that was maintained by the “AAT Set Aside” team within CCCS.

134    On 6 December 2022, the applicant’s case was allocated to a case officer named “Emma”.

135    The Department determined not to seek judicial review of the Tribunal’s decision on 16 December 2022.

136    It does not appear that any further substantive steps were taken in relation to the applicant’s case until June 2024. While several changes were made during this period to the applicant’s “triage” status recorded in the spreadsheet (from “Assigned EG”, to “Assessment T11”, and then to “Triage Assessment Misc 2023”), Ms Stern did not explain the meaning or significance of those changes.

137    On 20 June 2024, the applicant’s case was allocated to a new case officer identified as “Michelle”. Following that reallocation, the applicant’s case was assessed and sent for review by an Assistant Director of CCCS on 25 June 2025, before being sent to a Director of CCCS on 2 July 2024. Over the next 10 days, the triage assessment in the spreadsheet was updated successively to “Reviewed assessment with Gill”, “Assessment with EL1” and “To be tested with MO”, before the addition of a comment “MB referred to AS”.

138    On 17 July 2024, the applicant’s case was included in a document titled “11 AAT set aside cases for Minister’s Office (MO) consideration” (MB24-000722), which was provided to the Minister’s office for the purpose of seeking guidance in relation to 11 cases as to whether the Minister wished to exercise his power to set aside the Tribunal decision and cancel the person’s visa under s 501BA. The document stated that “[s]hould the Minister wish to pursue a case, the Department will prepare section 501BA submissions”, before setting out a factual summary in relation to each of the cases. The document relevantly identified some “AAT thresholds considerations” in relation to the applicant, stating that he had “committed a serious and violent crime” which “may be considered repugnant in nature to the Australian community”, and that he had “engaged in rehabilitative programs, including a drug and alcohol program while in prison”.

139    On 29 July 2024, the Hon Tony Burke MP was sworn in as the Minister for Immigration and Citizenship and Minister for Home Affairs and the Hon Matt Thistlethwaite was sworn in as the Assistant Minister for Immigration. On the same day, MB24-000722 was returned to the Department marked “(no decision) due to Minister change”.

140    On 6 September 2024, the applicant’s case was marked in the spreadsheet as “Does Not Meet” under the “Threshold” column.

141    On 4 October 2024, an Assistant Director sent an “AAT Set Aside Threshold Assessment” in respect of the applicant for review by the Director of Character Cancellations, Assessments, Referrals and Support (CCARS) within CACB. The assessment was just over one page in length, comprising a brief summary of the applicant’s offending history and the Tribunal’s decision in largely the same terms as was previously included within MB24-000722, but with the addition of a recommendation in the following terms:

The Department considers this case to meet thresholds. [The applicant] committed a serious and abhorrently violent crime and was sentenced to 7 years imprisonment.

Recommend preparing a submission for the Minister.

142    On 8 October 2024, the Director of CCARS signed the assessment and endorsed the recommendation.

143    On 31 October 2024, an officer in the NCCC provided the applicant’s case to an external legal service provider to prepare a draft submission, which was completed on 12 November 2024. In accordance with standard practice, the draft submission was reviewed for factual accuracy and checked for any errors by an Assistant Director in the Revocations and Discretionary section.

144    On 6 December 2024, the submission and attachments were uploaded to the Parliamentary Document Management System (PDMS), which is the official system used to store, monitor and manage the flow of parliamentary and executive documents, including ministerial correspondence and submissions. The submission was reviewed by Ms Stern on 10 December 2024, before being cleared by an Acting Assistant Secretary for progression to the Minister’s office. On 11 December 2024, the submission was emailed to the Minister’s office for consideration by the Minister.

145    At 11.49 am on 6 January 2025, the Minister made the decision.

Was the Minister’s decision made within a reasonable time?

146    In XMBQ, I discussed the principles that govern the question whether the power under s 501BA(2) has been exercised within a reasonable time after the original decision: see, in particular, at [169]–[176]; see also Hood at [23] (Kennett J); Song at [65] (Hill J). That aspect of the decision in XMBQ was not the subject of any appeal by the Minister.

147    The determination of a reasonable period within which the power under s 501BA must be exercised depends on an objective assessment of the facts and circumstances of the particular case. While an applicant on judicial review bears the onus of establishing that the Minister no longer had power under s 501BA to set aside the Tribunal’s decision and cancel the visa, there may be circumstances in which the delay in exercising the power “calls for explanation”. While due weight may be given to varying reasons for the delay at various times, the ultimate question is whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister.

148    In the light of the issues raised by the evidence in the present case, I refer in particular to my observations in XMBQ at [176]:

The volume of cases and the resources available to the Department may be relevant, but is not determinative: cf. [Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892] at [124]–[125] (Horan J). Similarly, it may be relevant, but not determinative, to have regard to any competing priorities and their associated demands on the Department and the Minister respectively. It should be kept in mind, however, that the “cohort” of s 501BA cases (whether themselves or together with s 501A cases) would often be expected to raise exceptional and pressing circumstances, which should usually attract a relatively high priority. This is reflected in some of the extrinsic material accompanying the 2014 amendments that introduced s 501BA. In this regard, there was a tendency in the evidence of Ms Frzovic to treat the impact of various events on the Department’s workload in an undifferentiated manner, across the entire spectrum of character cancellation and refusal decisions. However, the potential exercise by the Minister personally of the power in s 501BA(2) to set aside an original decision should not be subsumed or submerged in the overall business of the Character and Cancellation Branch or the Department generally, in an attempt to justify prolonged delay by reference to a “backlog” of cases or the need to update general Departmental guidelines and templates.

149    These observations cited an earlier passage from my reasons in Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [124]–[125]:

I accept that limits on the available resources to deal with a given workload is, in some circumstances, capable of providing some explanation for the time taken to make a decision on an application. That does not mean that a lengthy delay that is caused by a lack of adequate resources can never be regarded as unreasonable: see e.g. [BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530] at [104], referring to an observation made by the Privy Council in Oliveira v Attorney-General (Antigua and Barbuda) [2016] UKPC 24 at [44] that “absence of resources is not in general an excuse for maladministration”. In Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 477, Neave J stated:

Clearly, it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.

More recently, the relevance of resourcing constraints and the competing demands on finite resources to the question of unreasonable delay in making a decision was addressed by Wheelahan J in Patrick v Australian Information Commissioner (No 2) [2023] FCA 530, and on appeal by the Full Court (Bromwich, Abraham and McEvoy JJ) in [Patrick v Australian Information Commissioner [2024] FCAFC 93], in the context of the time taken by the Commissioner to make a decision on a number of applications for the review of agency decisions refusing freedom of information requests. The Full Court accepted (at [29]-[30]) that resourcing was properly treated as one relevant consideration in the process of determining whether any particular delay is unreasonable, provided that it is part of the explanation for that delay. The Full Court recognised (at [46]) that “[a]n assessment in all the circumstances does not preclude a finding that a delay is unreasonable in circumstances where the explanation provided refers to resourcing of the agency”. In the circumstances of that particular case, the Full Court affirmed the conclusion reached by Wheelahan J that the Commissioner’s delay in making decisions on the pending reviews was not unreasonable, in the context of the limited resources available to the Commissioner and the competing demands on those resources.

150    On the facts in XMBQ, within three months after the Tribunal’s decision, the Department had assessed XMBQ’s case and prepared a draft submission with a complete draft statement of reasons for consideration by the Minster under s 501BA. The draft submission was then “parked” or placed on hold for significant periods of time, ostensibly due to matters such as uncertainty caused by pending litigation, a change in Minister, and the commencement of a new Ministerial direction. Ultimately, more than three years elapsed before the Minister purported to exercise the power under s 501BA to set aside the Tribunal’s decision and cancel XMBQ’s visa.

151    The evidence in the present case is different. Here, there were significant delays in the initial triage and assessment of the applicant’s case against the referral thresholds, as a result of which the applicant’s case was not considered and assessed until more than 18 months after the Tribunal’s decision, and a draft submission was not prepared until late 2024. Once the final submission was provided to the Minister’s office in mid-December 2024, a decision was made by the Minister under s 501BA by early January 2025.

152    In these circumstances, the Minister sought to explain the period taken to make his decision under s 501BA on the following basis.

(a)    The Minister submitted that “the delay in the first period was caused by a combination of a very large volume of cases, the need to prioritise cases within that cohort, and resourcing constraints”, and “the allocation of resources to the increasing workload of the Department could not be said to have been unreasonable in the relevant sense”.

(b)    In respect of the second period, the Minister submitted “[t]he evidence therefore shows that, once the case was picked up for triaging in June 2024, there was continual activity on the case over the period of less than 6 months before it was sent to the Minister’s office”, and that this period did not occasion an unreasonable delay in making a decision.

153    The Minister conceded that no activity took place specifically on the applicant’s case between the Tribunal’s decision in November 2023 and the “reallocation” to a new case officer in June 2024. Nevertheless, the Minister argued that such a delay can be justified by reference to the following matters addressed in the evidence given by Ms Stern (which was unchallenged by the applicant in the current proceeding).

(a)    There was a large cohort of cases involving competing priorities, with relatively few officers available to triage and progress those cases. For example, as at 31 December 2022, there were approximately 518 cases awaiting Departmental assessment, and only a handful (between one and three) of officers in CCCS who were responsible for processing that caseload.

(b)    Cases were not triaged in chronological order within CCCS. Higher priority was given to certain categories of cases, such as those involving persons in immigration detention, which affected the ability to deal with “lower priority” cases, including the applicant’s case.

(c)    Resourcing within the NCCC was a “perennial issue”, including the team responsible for Tribunal “set aside” decisions. The Minister submitted that the work carried out by the team was specialised and legally complex, and that staff were required to undergo significant training to perform their functions.

(d)    The officers responsible for Tribunal “set aside” decisions could also be tasked with other responsibilities within CCCS or the NCCC, including controversial or high-profile cases. The work of the team was often diverted into responding to changes in Ministers, implementing new Ministerial directions, and conducting “sweeps” to identify affected cases following significant judicial decisions. This affected the applicant’s case because the work of the relevant officers “was concentrated on responding to more urgent and systemic issues, rather than working through the backlog of cases”.

154    In my view, the present case turns on whether the delay in the first period between November 2022 and June 2024 was reasonable in all of the circumstances. If not, it is immaterial whether or not the matter was progressed more expeditiously between June 2024 and the Minister’s decision on 6 January 2025. In other words, even if it were accepted that a period of around six months could be a reasonable time within which to exercise the power conferred by s 501BA(2), this would not itself justify or explain the entire 25-month period.

155    In Hood, the Assistant Minister had made a decision under s 501BA(2) about four years and nine months after the Tribunal’s decision. In finding that the Assistant Minister’s decision had not been made within a reasonable time, Kennett J had regard to evidence of a “long history of false starts” and periods of inactivity, observing that there was “no evidence of any specific impediment to the Department forming a view within a few months as to whether any, and if so what, recommendation should be made to the Minister in relation to the applicant”: Hood at [30]. His Honour referred to evidence given by Ms Stern in those proceedings in relation to “broader circumstances which made it difficult for the relevant areas in the Department to assess cases for the purposes of s 501BA, and decide which ones should be referred to the Minister, within more acceptable time frames”: Hood at [31]. This included evidence, similar to that given by Ms Stern in the present case, about resourcing constraints and the impacts of significant judicial decisions, changes in Minsters, and revised Ministerial directions: Hood at [31]–[32].

156    The “broader circumstances” were not regarded by Kennett J as establishing that the Assistant Minister’s decision under s 501BA(2) had been made within a reasonable time. In addition to emphasising the purpose for which the power in s 501BA is conferred (at [34]) and the impact of the decision on the rights and interests of the visa holder (at [36]), Kennett J dealt with the Assistant Minister’s reliance on resourcing constraints as follows (at [35]):

Secondly, while the availability of resources and the other demands on Ministers’ and departmental officers’ time are relevant, these factors are not determinative (XMBQ at [176]). Their force is qualified by the consideration that, in the case of a Department of State advising a Minister on a power which there is no duty to exercise, resourcing constraints are to a large extent the consequence of decisions about priorities rather than inviolable limitations. The repository of the statutory power is “the Minister”, who is an officer responsible under the Constitution for administering the Department and thus has power to direct where it should focus its efforts. The Minister is also a member of the government which, through the Budget process, determines the allocation of resources among departments. A “reasonable time” for the exercise of a discretionary power, in this context, is a statutory limit which cannot expand infinitely to accommodate the level of resources which the Minister or the government allocate to its consideration. It is a statutory limit implicit in a provision which, as Horan J noted, was envisaged as dealing with circumstances of urgency and providing for swift and decisive action.

157    In Song, the Minister similarly sought to identify two discrete periods: first, a period of slightly more than one year and nine months, which the Minister sought to explain “by volume of cases, resourcing constraints and competing priorities within the Department”; and second, a period of about three months during which “the Applicant’s case was triaged; his case was sent to the Minister’s office for initial consideration; the Department drafted a submission and draft statement of reasons; the Minister personally considered the Applicant’s matter and made a decision”: Song at [73]–[76]. Justice Hill held that the Minister’s decision was not made within a reasonable time, noting that the initial triaging and assessment of the applicant’s case against the referral thresholds had not commenced until almost 22 months after the Tribunal’s decision: Song at [94]. While his Honour accepted that available resources and competing priorities were a relevant factor, they did not prevent a conclusion that there had been unreasonable delay in exercising the power under s 501BA.

158    Each case must be determined on its particular facts. Nevertheless, the present case bears similarities with Hood and Song, and there is an overlap in the matters raised by the evidence in those cases and the present case concerning the broader context in which the Department addresses and responds to Tribunal decisions setting aside primary non-revocation decisions under s 501CA(4).

159    In so far as s 501BA is properly regarded as conferring an exceptional power to intervene in cases where the Minister is satisfied that it is in the national interest to cancel a visa that has been granted to a person, notwithstanding that a delegate or the Tribunal has found that the person passes the character test or that there is another reason to revoke the cancellation of that visa, one might expect that sufficient resources could be dedicated to enable such cases to be identified for consideration by the Minister without languishing for months or years without even an initial assessment or “triage”. The evidence in the present case does not suggest that such assessments are particularly time consuming or complex — the assessment in relation to the applicant involved the preparation of a short summary of background facts, an identification of any “sensitivities”, and a brief recommendation whether the case fell within one of the specified thresholds for referral to the Minister.

160    Accordingly, even taking into account the resource constraints and other related matters, I do not consider that the Minister has justified the period of over 18 months from the date of the Tribunal’s decision until 20 June 2024 during which no consideration at all was given to the applicant’s case.

161    I therefore find that the Minster’s decision under s 501BA was not made within a reasonable time, and was beyond power. Ground 6 is upheld.

Conclusion

162    As the applicant has established Grounds 3 and 6 of the further amended originating application, the Minister’s decision was beyond power and should be quashed. Costs should follow the event.

163    The applicant submitted that, if Ground 6 was upheld, the Court should grant a declaration that the power under s 501BA(2) is not available to be exercised to set aside the Tribunal’s decision and cancel the applicant’s Partner visa, or a writ of prohibition to restrain the Minister from making any such decision. In the circumstances of the present case, I do not consider that it is necessary for such relief to be granted. The Minister has no duty to consider or to make a decision under s 501BA and, subject to the outcome of the Minister’s appeal in XMBQ, there is no suggestion that he will do so in the light of the reasons for judgment in the present case. I note also that relief of that kind was not granted in XMBQ.

Associate:

Dated:    6 March 2026