Federal Court of Australia

Pihama v Minister for Immigration and Multicultural Affairs [2026] FCA 538

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 16 October 2024 is amended by substituting the details of the relief sought and the grounds of the application with the following:

Details of relief sought

1.    A writ of certiorari issue, directed to the respondent, quashing the decision made on 12 September 2024 to set aside a decision of the Administrative Appeal Tribunal made on 11 January 2024 and cancel the applicant's visa purportedly under s 501BA of the Migration Act 1958 (Cth).

2.    A writ of prohibition issue to prevent the respondent, whether personally or by his officers, services, agents, delegates or otherwise, from acting upon or giving effect to or proceeding further in reliance upon the decision made on 12 September 2024 to cancel the applicant's visa.

3.    The respondent pay the applicant's costs.

Grounds of application

The decision of the Minister made on 12 September 2024 was affected by jurisdictional error in that:

1.    in assessing the likelihood of the applicant re-offending in the future, the Minister erroneously represented in the reasons for decision that he considered relevant material, specifically a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service dated 19 September 2023, which he did not consider and which was not before him; and

2.    having decided not to afford the applicant natural justice, the Minister's decision to apply a discount to the best interests of the applicant's minor child was illogical and lacked intelligible justification because it proceeded on an unstated assumption that the applicant had obtained, or would obtain upon his release from immigration detention, custody of his child, which was not open on the evidence before him.

2.    A writ of certiorari issue, directed to the respondent, quashing the decision made on 12 September 2024 to set aside a decision of the Administrative Appeals Tribunal made on 11 January 2024 and to cancel the applicant's visa.

3.    A writ of prohibition issue, directed to the respondent, preventing the respondent, whether personally or by his officers, services, agents, delegates or otherwise, from acting upon or giving effect to or proceeding further in reliance upon the decision made on 12 September 2024 to set aside a decision of the Administrative Appeals Tribunal made on 11 January 2024 and to cancel the applicant's visa.

4.    The respondent is to pay the applicant's costs.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicant, Shayman William Pihama, is a citizen of New Zealand who first arrived in Australia in November 2011 at the age of 27 years.

2    In September 2021, a delegate of the then responsible Minister cancelled Mr Pihama's Special Category (Temporary) (Class TY) (Subclass 444) visa under s 501(3A) of the Migration Act 1958 (Cth). Mr Pihama unsuccessfully sought revocation of that decision under s 501CA(4) of the Migration Act. Mr Pihama was also unsuccessful in a subsequent application to the Administrative Appeals Tribunal (AAT) for review of that decision. However, Mr Pihama was then successful when he applied for judicial review of the AAT's decision in this Court. When Mr Pihama's case was remitted back to the AAT for reconsideration, the AAT decided to set aside the decision not to revoke the cancellation of Mr Pihama's visa and to substitute it with a decision to revoke the mandatory cancellation of the visa.

3    After Mr Pihama was released from immigration detention, the Minister decided to exercise the power in s 501BA(2) of the Migration Act to set aside the AAT's decision and cancel Mr Pihama's visa. Mr Pihama now applies for judicial review of the Minister's decision.

4    At the commencement of the hearing of Mr Pihama's application for judicial review, senior counsel for Mr Pihama sought leave to make certain amendments to the originating application filed on 16 October 2024. In the absence of any objection from the Minister, leave to make those amendments is granted.

5    Mr Pihama seeks an order that a writ of certiorari issue directed to the Minister, quashing the Minister's decision. Having regard to subss (1) and (2) of s 476A of the Migration Act and to the fact that this Court's jurisdiction is the same as the jurisdiction of the High Court of Australia under s 75(v) of the Constitution, Mr Pihama also seeks an order that a writ of prohibition issue against the Minister.

6    Although Mr Pihama initially sought to rely on two grounds of review, senior counsel for Mr Pihama abandoned the second of those grounds at the hearing of his application. By his remaining ground, Mr Pihama contends that the Minister fell into jurisdictional error by exercising his statutory decision-making power under s 501BA(2) of the Migration Act in a manner that was illogical or irrational.

7    Before explaining why I am of the view that the ground of review upon which Mr Pihama relies should be upheld, I will provide some further background to the application for judicial review.

Relevant background

8    Mr Pihama has lived in Australia for over 10 years. His immediate family live in Western Australia. However, his daughter, who was born in 2021, lives in another state and is under the care of child protection services.

9    In September 2021, Mr Pihama's visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act (original decision). Mr Pihama then made representations to the Minister seeking revocation of the original decision for the purposes of s 501CA(4)(a). However, a delegate of the Minister decided not to revoke the original decision (delegate's decision). Mr Pihama then applied to the AAT for a review of the delegate's decision. In December 2022, the AAT decided to affirm the delegate's decision (first AAT decision).

10    Mr Pihama subsequently applied for judicial review of the first AAT decision in this Court. On 19 June 2023, this Court quashed the first AAT decision and remitted the matter back to the AAT for reconsideration according to law: Pihama v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 678. On remittal, in January 2024, a differently constituted AAT decided to set aside the delegate's decision and substitute it with a decision to revoke the cancellation of Mr Pihama's visa under s 501CA(4) (second AAT decision). Mr Pihama's visa was then reinstated, and he was released from immigration detention.

11    However, the Minister then decided to exercise the power conferred by s 501BA(2) of the Migration Act to set aside the second AAT decision and cancelled Mr Pihama's visa (Minister's decision). The Minister gave detailed reasons for reaching that decision in a written statement of reasons for decision dated 12 September 2024 (Minister's reasons). As the Minister's reasons are the focus of the applicant's application for judicial review, I will summarise those reasons. However, before doing that, I will first reproduce the relevant legislative provisions as this may assist in better understanding the Minister's reasons.

Relevant legislative provisions

12    At the relevant time, s 501BA(1) provided that s 501BA applied if a delegate of the Minister or the AAT made a decision under s 501CA, referred to in s 501BA as the 'original decision', to revoke a decision under s 501(3A) to cancel a visa that has been granted to a person.

13    The balance of s 501BA was in the following terms:

Action by Minister - natural justice does not apply

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

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

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

(ii)     paragraph 501(6)(e); and

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

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

Minister's exercise of power

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

Decision not reviewable under Part 5 or 7

(5)     A decision under subsection (2) is not reviewable under Part 5 or 7.

14    The proper construction of s 501BA was recently considered in Moli v Minister for Immigration and Citizenship [2025] FCAFC 175; (2025) 313 FCR 385. In that case, the Full Court endorsed the primary judge's explication of the authorities that have construed s 501BA at [7]:

1.    the provision confers a discretionary power upon the Minister personally;

2.    the matters stated in s 501BA(2) are pre-conditions that must be met before the power arises;

3.    one pre-condition is that the Minister is satisfied that the cancellation of the person's visa is in the national interest;

4.    the required state of satisfaction must be formed within the bounds of reasonableness and rationality;

5.    the required state of satisfaction must be formed on the basis of a correct understanding of the law (particularly, a correct understanding of what is required by the pre-condition);

6.    the formation of the required state of satisfaction involves the making of a broad evaluative judgment;

7.    what is in the national interest for the purposes of the provision is largely a political question; and

8.    the concept of the national interest is undoubtedly broad but is not unbounded.

15    The Full Court also endorsed the primary judge's observation that, in order to form a state of satisfaction as to whether the cancellation of a visa would be in the national interest, the Minister must be able to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why.

16    As will be seen, Mr Pihama's ground of review is concerned with the pre-condition to the exercise of the power in s 501BA that appears in subs (2)(b) of that provision, namely that the Minister form a state of satisfaction that the cancellation of Mr Pihama's visa was in the national interest. More specifically, Mr Pihama complains that the Minister did not reach the state of satisfaction (concerning that pre-condition) in a manner that was logical and rational so as to amount to jurisdictional error. Against that background, I will now summarise the Minister's reasons.

The Minister's reasons

17    Before making his decision to set aside the second AAT decision and cancel Mr Pihama's visa, the Minister was provided with a submission from the Department of Home Affairs dated 4 September 2024 (Department submission). The Department submission referred to various matters considered to be relevant to the Minister's decision. As is common, the Minister was also provided with a bundle of documents, comprising an 'index of relevant documents' and 'copies of the relevant documents themselves'. Additionally, the Minister was given a draft statement of reasons, which he ultimately adopted without amendment and signed.

18    The Department submission included the following statements:

If, having considered all materials provided, you are satisfied that [the applicant] does not pass the character test because of the operation of s501(6)(a) of the [Migration Act], on the basis of s501(7)(c) of the [Migration Act], and that it is in the National Interest to cancel [the applicant's] visa, you may decide to exercise your discretion under s501BA of the [Migration Act] to set aside the AAT decision and cancel [the applicant's] Special Category (Temporary) (Class TY) (Subclass 444) visa.

Alternatively, you may decide NOT to exercise your discretion to set aside the AAT decision and cancel [the applicant's] Special Category (Temporary) (Class TY) (Subclass 444) visa under s501BA of the [Migration Act], despite being satisfied that [the applicant] does not pass the relevant limb of the character test, and that it is in the National Interest to cancel [the applicant's] visa.

19    In the Minister's reasons he commenced with a brief description of the relevant circumstances that led up to the second AAT decision and to Mr Pihama's subsequent release from immigration detention in January 2024.

20    The Minister then observed that s 501BA(2) of the Migration Act conferred on him a power to set aside the second AAT decision, and that the rules of natural justice did not apply to the exercise of that power. Although the Minister noted that he was not precluded from affording a person an opportunity to be heard, he chose to proceed without giving Mr Pihama that opportunity. The Minister recognised that Mr Pihama had therefore not been given an opportunity to advance reasons as to why an adverse decision should not be made. Nevertheless, the Minister said:

11.    I have, however, given consideration to information given by [the applicant] in relation to the original request for revocation and in the AAT proceedings, including as reflected in the first and second decision records of the AAT in revoking the decision to cancel [the applicant's] visa (while remaining mindful that [the] Federal Court found that the first AAT decision was affected by jurisdictional error).

21    The Minister was satisfied that Mr Pihama did not pass the character test and that the first pre-condition in s 501BA(2)(a) was therefore met. Mr Pihama does not take issue with this aspect of the Minister's decision.

22    In the context of the second pre-condition in s 501BA(2)(b), namely whether cancellation of Mr Pihama's visa was in the national interest, the Minister formulated the aspect of the national interest that he considered would be served, promoted or advanced by the cancellation of Mr Pihama's visa. Specifically, the Minister said that he considered that the relevant matters of national interest included 'protection of the Australian community, the prevention of conduct constituting family violence and the expectations of the Australian community'. The Minister then considered those matters under two separate headings: 'Protection of the community' and 'Expectations of the Australian community'.

23    In considering the protection of the Australian community, the Minister had regard to the seriousness of Mr Pihama's previous offending behaviour, the likelihood that he would reoffend, and the risk that he posed to the Australian community if that likelihood were to eventuate. The focus of the ground of review on which Mr Pihama relies is the manner in which the Minister approached the third of those matters.

24    The Minister commenced his evaluation of the risk Mr Pihama posed to the Australian community by noting that, in view of Mr Pihama's offending history, any future offending of a similar nature or seriousness would have the potential to cause serious physical and psychological injury and financial harm to members of the Australian community. The Minister then said that:

47.    In assessing the likelihood of [the applicant] reoffending in the future, I have 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 immigration detention, where relevant information is available.

(emphasis added)

25    The Minister then examined the various factors that contributed to Mr Pihama's past conduct. In that context, the Minister made reference to specific documents that were attached to the Department submission, before concluding that Mr Pihama's offending had been contributed to by his alcohol and drug use (describing his drug use as a likely driving factor for his offending), the breakdown of a past relationship, his lack of employment and his association with antisocial peers.

26    The Minister then turned to consider Mr Pihama's rehabilitation and remorse. As Mr Pihama's ground of review is concerned with this aspect of the Minister's reasoning, it is necessary to set out this part of the Minister's reasons in full:

(b) Rehabilitation and remorse

57.    In oral evidence before the first Tribunal hearing, [the applicant] said he was resistant to engaging in drug and alcohol interventions earlier because he was using drugs at the time Attachment Y. [The applicant] made efforts to engage with a psychologist while in jail to address his substance abuse issues Attachment Y. He has continued with psychological intervention while in immigration detention, which has 'focused on learning strategies to stay away from drugs such as keeping busy with work, going to the gym and other hobbies and how to avoid situations and people involving alcohol and drugs' Attachment Y. [The applicant] has stated that he has been seeing 'four counsellors everyday of the week' and a psychologist twice per week at the time of the second Tribunal hearing Attachment Z. [The applicant] has also completed various courses, including the Explore Program and other relevant courses relating to anger management, drug and alcohol abuse, stress management and vocational skills Attachments L, T3, V, X, Y, and Z.

58.    I accept that [the applicant] has also sought to address his substance abuse issues through engagement with SMART recovery sessions, counselling with QulHN Ltd and the Alcohol and Drug Support Service and a course with Respectful Man Attachment I and Z. [The applicant] has also engaged with various support services regarding counselling sessions, including Alcohol and Drug Support Service, Interrelate and SANE Drop-in Support Services Attachment Z. [The applicant] has also participated in SANE mental health support forums Attachment Z.

59.    As recorded in the second Tribunal decision, [the applicant] also relies on a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service, which states that [the applicant] has engaged in counselling, been open regarding his drug use and crime and the impact that this has had on others Attachment Z. [The applicant] was also recorded as expressing contrition for his inability to support his daughter and ex-partner Attachment I.

60.    At the time of the first Tribunal hearing on 15 November 2022, [the applicant] gave oral evidence that he last used drugs 20 months ago, upon learning of the birth of his daughter Attachment Y. [The applicant] gave evidence at the first Tribunal hearing that he had not used drugs in prison or immigration detention Attachment Y. [The applicant] has also committed to weekly drug tests to obtain custody of his daughter […] Attachments I, Y and Z. The evidence before me variously states that [the applicant] has learned his lesson since 'being locked up', has engaged in rehabilitation courses and psychological interventions and therefore is not at risk of relapsing into substance abuse and reoffending Attachments M1, M3, N, P1, X, Y and Z.

61.    I am guarded with respect to [the applicant's] evidence that he has not used drugs in prison or immigration detention, and that he will not relapse into substance abuse upon release into the community. In making this assessment, I refer to the report of an incident which occurred on 23 March 2022, in which [the applicant] was searched by an officer and was found with a small amount of suboxone, being a dangerous drug, in his possession Attachments H and R. On 24 May 2022, [the applicant] was subsequently convicted for the offence of possess dangerous drug Attachment A. I acknowledge that [the applicant's] previous legal representation made representations that this offence was viewed as a 'trivial offence' by the sentencing Magistrate and he was not further punished Attachments S and V. Nevertheless, I note that [the applicant] was in possession of the suboxone while in immigration detention, and therefore, was still exposed to drugs at this time. I hold concerns that [the applicant] has not remained drug free in a [sic] immigration detention, which is a tightly controlled environment, and therefore cannot accept that he will not relapse into substance abuse when in the community.

62.    [The applicant] has also been [the] subject of two further incident reports from his time in Brisbane Immigration Detention in April and March 2022 Attachment R. [The applicant] has made representations denying knowledge or involvement with respect to these incidents Attachment I and S. I place no weight on these incident reports given they did not result in convictions.

63.    [The applicant] has also been subject of an incident report from his time in Brisbane Immigration Detention in June 2023, in which he was found in possession [of] 10 litres of home brew in his room Attachments I and Z. [The applicant's] oral evidence before the second Tribunal hearing was that this home brew was his and 'it was a mistake' Annexure I. I find this is further supportive of a finding that [the applicant] is at risk of relapsing into substance abuse and therefore reoffending if released into the community.

64.    I acknowledge that [the applicant] was 'more candid' regarding the causes of his offending when giving evidence at the second Tribunal hearing Attachment I. Nevertheless, I adopt the Tribunal's finding that it is 'guarded' with respect to [the applicant's] rehabilitation, and in making this finding, I note that [the applicant] sought to downplay his offending at the first Tribunal hearing, as he was concerned with obtaining care of his daughter […] Attachment I. Additionally, [the applicant] has minimised his offending in New Zealand by describing it as 'minor charges', despite some of these offences involving family violence Attachment M3.

65.    I accept that [the applicant] has expressed contrition for his offending and his inability to support his daughter and ex-partner Attachments I, K, L, M1, M3 and Z. [The applicant] has given evidence that he is motivated not to reoffend or relapse into substance abuse in order to support his family and to obtain full-time care of his daughter […] Attachments I, M1, M3, V, X, Y and Z. However, I am guarded with respect to the evidence regarding [the applicant's] remorse and his motivations not to reoffend in order support of [sic] his family, noting that his daughter […] was born while he was incarcerated on 23 September 2021, and [the applicant] was notified of the mandatory cancellation of his visa on 13 September 2021, yet [the applicant] was found in possession of suboxone in March 2022 Attachment R.

66.    As recorded in the second AAT decision, [the applicant's] evidence was that he would move to Western Australia to live with his mother if released into the community Attachments I and Z. [The applicant] relied on evidence from various family members, friends and members of the community who have stated they will provide him support and assist with employment if he is released into the community Attachments N, O, P, P2, P3, X, and Z. I find that this is a protective factor that which [sic] may lessen [the applicant's] risk of reoffending and exposure to antisocial peers.

67.    Despite the evidence of [the applicant's] rehabilitation efforts, I agree with the Tribunal's assessment in the second Tribunal decision that it could not be satisfied that he was 'fully rehabilitated within the prison and immigration detention systems' Attachment I.

Conclusion on risk to community

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

69.    I have found that [the applicant's] conduct is very serious and that such conduct if repeated has the potential to cause physical and psychological injury and financial harm to members of the Australian community.

70.    A number of factors, as outlined above, may have contributed to [the applicant's] offending behaviour. I note that his substance abuse is likely a contributing factor to his criminal offending. However, I remain concerned that [the applicant] may not be rehabilitated despite his stated intention to stop using addictive substances and to continue engagement with rehabilitation in the community.

71.    I have found that on balance that there remains a moderate risk that [the applicant] will reoffend.

72.    Considering the nature and seriousness of [the applicant's] conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of [the applicant's] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs very strongly in support of cancellation in this case in the National Interest.

(original emphasis)

27    As can be seen, there are several references in this part of the Minister's reasons to various 'Attachments'. Similar references are made in the balance of the Minister's reasons. The 'Attachments' are parts of the bundle of documents that accompanied the Department submission. Mr Pihama's ground of review is concerned with 'Attachment Z'. That attachment was referred to in an 'INDEX OF RELEVANT MATERIAL', which was itself attached to the Department submission, as an 'Extract of documents filed in the second Administrative Appeals Tribunal proceedings'.

28    Having dealt with the risk to the Australian community, the Minister then proceeded to consider the expectations of the Australian community. The Minister concluded that 'significant weight' should be given to this factor 'towards a finding that it is in the National Interest to cancel [the applicant's] visa'.

29    The Minister then concluded that, having regard to all of the matters to which he had given consideration, the use of his discretionary power to cancel Mr Pihama's visa was in the national interest.

30    Having reached that conclusion, the Minister went on to consider whether there were relevant factors that might nevertheless support a discretionary decision not to cancel Mr Pihama's visa, even though he was satisfied that it was in the national interest to do so. In that context, the Minister had regard to various factors, including the best interests of minor children, Mr Pihama's ties to Australia and whether there were any impediments Mr Pihama would face were he to be removed from Australia to New Zealand. As Mr Pihama's ground of review does not concern this aspect of the Minister's reasons it is only necessary to note that, although the Minister concluded that some of these discretionary considerations weighed against cancelling Mr Pihama's visa, they were outweighed by the national interest considerations.

31    Ultimately, the Minister decided to exercise his discretion to set aside the second AAT decision and cancel Mr Pihama's visa.

32    Having summarised the Minister's reasons, it is now appropriate to identify the ground of review on which Mr Pihama relies.

Ground of review

33    The solitary ground of review on which Mr Pihama relies is in the following terms:

The decision of the Minister made on 12 September 2024 was affected by jurisdictional error in that in assessing the likelihood of the applicant re-offending in the future, the Minister erroneously represented in the reasons for decision that he considered relevant material, specifically a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service dated 19 September 2023, which he did not consider and which was not before him.

34    It may be seen that the ground refers to a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service dated 19 September 2023 (support letter).

35    The relevant parts of the support letter are as follows:

TO WHOM IT MAY CONCERN

Re: Shayman Pihama         Date of Birth: [redacted]

This letter is to support Shayman Pihama in his deportation court case scheduled in November 2023.

Shayman contacted the Alcohol and Drug Support Service at the Western Australian Mental Health Commission in Perth on the 4th July 2023. He requested telephone counselling to help him address his previous alcohol and drug use. At the time of writing this letter, 19th September 2023, Shayman has engaged in counselling on 7 occasions. The sessions have been conducted on a weekly or fortnightly basis.

During these counselling sessions, Shayman has spoken of his life before prison, his personal life and the work and education he has been involved in while in detention. We have discussed a range of issues focusing on past drug use, and his current psychological wellbeing and life after detention.

Importantly, the focus was on Shayman's attitude to drug use and his plans on how to live without drugs when he is back in society. This included relapse prevention, goal setting, problem solving, challenging unhelpful thinking and mindfulness.

Throughout the sessions, Shayman has been open about his previous behaviour and attitudes, explaining his involvement in drug use and crime, and understanding the consequences of his actions. The impact of this behaviour has been considerable, and he expressed his contrition in not being able to support his ex-partner and his daughter in the first years of her life.

He has willingly engaged in the counselling sessions and has used the time to think through how the potential obstacles and threats may challenge his resolve not to relapse in the future, and how to be aware of and address these issues with strategies and support, before they could catch him up.

Shayman has spoken of his plans for post release housing, employment and support, both social and professional, to enable him to reset his life and establish a solid relationship with his daughter.

Yours sincerely

[redacted]

Counsellor

Alcohol and Drug Support Service

19th September 2023

36    The support letter was referred to at para 59 of the Minister's reasons. However, it is common ground that the support letter was not in the bundle of documents that were before the Minister at the time he made his decision to cancel Mr Pihama's visa and, more specifically, did not form part of 'Attachment Z'. In short, the support letter was never put before the Minister.

37    Mr Pihama essentially contends that the Minister's satisfaction that it was in the national interest to cancel Mr Pihama's visa was affected by jurisdictional error because the Minister breached a condition affecting the exercise of the power in s 501BA(2), namely that the fact-finding task attending the exercise of that power be conducted in a manner that is logical and rational.

The parties' contentions

38    Mr Pihama submits that the Minister's reasons demonstrate that the Minister identified that the support letter was relevant to his consideration of whether cancellation of Mr Pihama's visa was in the national interest. Mr Pihama further submits that the Minister represented that he had, in fact, considered that letter. However, Mr Pihama contends that, contrary to the Minister's representation, the true position was that the Minister had not considered the support letter at all as it was not before him at the time he made his decision.

39    Mr Pihama relies on three paragraphs taken from the Minister's reasons as demonstrating that the Minister falsely stated that he had considered the support letter in making his decision to cancel Mr Pihama's visa.

40    The first of those paragraphs is para 11 of the Minister's reasons, which reads as follows:

11.    I have, however, given consideration to information given by [the applicant] in relation to the original request for revocation and in the AAT proceedings, including as reflected in the first and second decision records of the AAT in revoking the decision to cancel [the applicant's] visa (while remaining mindful that [the] Federal Court found that the first AAT decision was affected by jurisdictional error).

(emphasis added)

41    Mr Pihama says that the support letter was part of the 'information' he 'gave' to the AAT when it reconsidered his application for a review of the delegate's decision not to revoke the cancellation of his visa under s 501CA(4). Accordingly, and having particular regard to the passage emphasised in the above paragraph, Mr Pihama argues that the Minister made a statement that he had given consideration to the letter.

42    The second paragraph taken from the Minister's reasons on which Mr Pihama relies is para 47, which is in the following terms:

47.    In assessing the likelihood of [the applicant] reoffending in the future, I have 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 immigration detention, where relevant information is available.

(emphasis added)

43    Mr Pihama submits that, in this paragraph of the Minister's reasons, the Minister again represented that he had considered the support letter. This is because Mr Pihama contends that the support letter was part of the 'available information as to … indications of remorse and the extent of [his] rehabilitation'.

44    The third paragraph of the Minister's decision on which Mr Pihama relies is para 59, which reads:

59.    As recorded in the second Tribunal decision, [the applicant] also relies on a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service, which states that [the applicant] has engaged in counselling, been open regarding his drug use and crime and the impact that this has had on others Attachment Z. [The applicant] was also recorded as expressing contrition for his inability to support his daughter and ex-partner Attachment I.

(original emphasis)

45    Mr Pihama submits that this paragraph constitutes a further statement by the Minister that he had considered the support letter. As I understand it, Mr Pihama relies on the fact that the Minister expressly referred to the support letter in this paragraph. Further, Mr Pihama relies on the reference in that paragraph to 'Attachment Z' and says, when read in the context of the whole paragraph, that implied not only that the support letter was included in the bundle of documents that were provided to the Minister as attachments to the Department submission but also that it had been considered by the Minister when he made his decision to cancel Mr Pihama's visa.

46    Mr Pihama argues that it was illogical and irrational for the Minister to carry out his statutory function under s 501BA(2) in this manner and that, accordingly, the Minister's decision to set aside the second AAT decision and to cancel Mr Pihama's visa was affected by jurisdictional error.

47    In Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45 (SSVJ) at [20] to [21], the Full Court made the following observations about the power conferred by s 501BA(2):

It was not in issue that 'the national interest' is a matter for evaluation and 'largely a political question' (Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]). However, when a power is conditioned on the decision-maker being 'satisfied' of a particular matter (even one as broadly evaluative as 'the national interest'), the condition will be found not to have been met if the relevant state of satisfaction either did not exist in fact or was 'irrational, illogical or not based on findings or inferences of fact supported by logical grounds': Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 (Allsop CJ, Besanko and O'Callaghan JJ) at [35] (Djokovic) (citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (SGLB) and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [52], [173] (Applicant S20)). This entails that the relevant state of satisfaction must be not only available on the material before the decision-maker but arrived at by a process of reasoning that conforms to basic notions of rationality. These requirements are aspects of 'the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute' (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [90] (Gageler J) (Li) (original emphasis)).

It is useful at this point to note the real but sometimes subtle distinction between a purported exercise of discretion (where the term 'unreasonable' aptly describes a decision that lacks an evident and intelligible justification (see eg Li at [76] (Hayne, Kiefel and Bell JJ)) on the one hand and the formation of a state of satisfaction (where findings or reasoning that lack a probative basis lead to a decision properly described as 'irrational, illogical or not based on findings or inferences of fact supported by logical grounds' (see eg SGLB at [38] and Applicant S20 at [52] (McHugh and Gummow JJ)) on the other. The Full Court in Djokovic at [29]-[35] discussed these two kinds of case together (as they are related emanations of the same basic principle), but was careful to note the distinct existence of both. The issues that arose in Djokovic concerned a state of satisfaction, as does the issue in the present appeal.

48    Mr Pihama's ground of review is concerned with the process of reasoning or manner by which the Minister formed a state of satisfaction that the cancellation of Mr Pihama's visa is in the national interest. Accordingly, it is the Minister's reasons that must be considered in order to understand how and why the power was exercised as it was: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539 at [93] (Stewart and Needham JJ). However, it is important to understand the precise basis on which Mr Pihama contends that the Minister's decision was affected by jurisdictional error. In that regard, Mr Pihama relies heavily on an aspect of the reasoning employed by Charlesworth J in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299.

49    LJTZ also concerned an application for judicial review of an adverse decision made under s 501BA(2). The applicant in that case relied on four grounds of review, each of which contained several particulars. Her Honour ultimately upheld all of the grounds of review. However, for the purposes of this matter, it is only necessary to refer to the fourth of those grounds of review and then only to the first particular of that ground.

50    By the fourth ground of review, the applicant in LJTZ asserted that the relevant decision was affected by jurisdictional error because the Minister had constructively failed to exercise jurisdiction. More specifically, it was contended that the Minister had stated in his reasons for decision that he had considered the applicant's representations to the AAT when the Minister had not, in fact, considered those representations at all. It was common ground in LJTZ that the applicant's representations were not before the Minister at the time he decided to cancel the applicant's visa under s 501BA(2).

51    By the first particular to the fourth ground of review, the applicant in LJTZ contended that:

[t]he Minister acted unreasonably, irrationally and/or illogically because there was no basis on which he could reasonably find that he had considered representations which he did not consider and which were not before him.

52    This particular focused on the following aspect of the Minister's reasons:

In this case, I chose to proceed without giving [the applicant] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance [the applicant's] family includes: his two minor children and his elderly mother.

I have, however, given consideration to representations made by [the applicant] in relation to the original decision and in the AAT proceedings which resulted in the AAT revoking the decision to cancel [the applicant's] visa.

53    In dealing with the first particular of the fourth ground of review, Charlesworth J found that the Minister's above statement that he had 'given consideration to the representations made by the applicant' was false because the Minister had not, in fact, been provided with those representations at the time of his decision. Her Honour therefore found that the Minister had no regard to those representations in making the decision to cancel the relevant visa, contrary to what was conveyed by the Minister's reasons for decision. Noting at [38] that it would be:

illogical in the ordinary sense of the word for an administrative decision-maker to state that consideration has been given to evidentiary material in circumstances where no such consideration has been given[,]

54    Charlesworth J said that the real question was whether this demonstrated illogicality constituted jurisdictional error so as to vitiate the Minister's decision under s 501BA(2).

55    After referring to uncontroversial principles concerning the operation of s 501BA(2), including that Parliament is taken to have intended that the power conferred by that provision will be exercised reasonably and that there is an implied requirement that the state of satisfaction required by s 501BA(2) be reasonably formed, Charlesworth J then said at [41] that:

The cases demonstrate that legal unreasonableness may affect a decision made in the exercise of a discretionary power or a power concerning matters of practice and procedure, so as to vitiate the ultimate outcome.

(emphasis added)

56    Her Honour then reproduced the regularly cited passage from the joint reasons of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] to [131], before referring to what was said by Allsop CJ and Griffiths J in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11] and [62], respectively, at [43] and [44]:

The ascertainment of a standard of legal reasonableness 'does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker': [Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332] (at [66]). In all cases it is necessary to look to the scope and purpose of the statute conferring the power to find its limits: Li (at [67]). As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]), the boundaries may be difficult to define:

'… The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.'

To similar effect, Griff[i]ths J warned against a formulaic approach. His Honour said (at [62]):

… A more sophisticated approach is required, one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision-maker to make. This necessarily requires that close attention be given to relevant features of the particular statutory framework within which that authority arises. That framework necessarily includes the subject matter, scope and purpose of the relevant statutory power. But the statute also frequently provides additional indicators which assist in determining whether a particular exercise of a statutory discretionary power is one which exceeds the authority of the decision-maker and is legally unreasonable…

(original emphasis)

57    In order to understand Charlesworth J's conclusion concerning the first particular of the fourth ground of review in LJTZ, to which I will shortly come, it is important to appreciate that these two passages that her Honour quoted from Stretton emphasise that the concept of legal unreasonableness is 'not amenable to minute and rigidly‑defined categorisation or a precise textual formulary' (Stretton at [10] (Allsop CJ)) and that, as Griffiths J stated at [62]:

The relevant principles which have emerged to date provide helpful guidance but they ought not to be viewed as exhaustive or as encouraging a formulaic approach to the application of these heads of review which proceeds by way of an exercise in 'ticking the boxes' …

58    After referring to the relevant principles in the way I have just explained, Charlesworth J then turned to consider the statutory context in which the Minister in LJTZ exercised the power in s 501BA(2) to set aside a decision made by the AAT and to cancel the relevant visa. In that regard, her Honour noted that three features of s 501BA(2) assumed some importance. Those features were that the power was required to be exercised by the Minister personally, that the rules of natural justice did not apply and that the Minister was required to determine what the national interest requires at the time the power is exercised, not what it might have required at some earlier stage.

59    Her Honour then said the following at [46]:

In the absence of mandatory relevant considerations, it was otherwise for the Minister to identify for himself (within the bounds of legal reasonableness) the matters he considered to be relevant to the national interest. The Minister relevantly identified the applicant's rehabilitative prospects and the interests of the applicant's minor children as among the relevant factors. By necessary implication, the Minister was required to make findings about those matters in reaching the requisite state of satisfaction under s 501BA(2)(b). In that respect, there was a fact finding aspect of the power that was essential to its exercise, and that was itself to be undertaken within the bounds of legal reasonableness. Having identified the relevant considerations in the particular case, the task required that the Minister have regard to such evidentiary material that bore on those considerations and to identify the weight to be afforded to them.

(emphasis added)

60    It may be seen, therefore, that Charlesworth J had regard to the terms of s 501BA as well as its scope and purpose, and identified that there is a fact-finding aspect of the power conferred by that provision that is essential to its exercise, and that this fact-finding aspect must itself be undertaken within the bounds of legal reasonableness. Her Honour then, at [50], applied this understanding of s 501BA to the facts of the case in the following passage on which Mr Pihama places particular reliance:

Considered in the proper statutory context, I consider the illogicality at [the second paragraph of the quote taken from LJTZ that appears at [52] of these reasons] constitutes a breach of a condition affecting the exercise of the power, namely that the Minister conduct the fact finding task attending the exercise of the power in a manner that is logical and rational. It was nonsensical for the Minister to conclude that the Tribunal information bore on the matters he determined to be relevant, and to state that the material had been considered, when the true state of affairs was that the Tribunal information was not before him and had not been considered at all. I would arrive at that conclusion irrespective of whether the assertion was knowingly false.

(emphasis added)

61    Mr Pihama argues that it was similarly 'nonsensical' in the circumstances of his case for the Minister to have identified that the support letter was relevant to his consideration of whether to exercise the power under s 501BA(2) and to state that it had been considered, when that letter had not in fact been considered. It is on that basis that Mr Pihama argues that the Minister also failed to carry out the fact-finding aspect of the power conferred by that provision in a logical and rational manner, in breach of a condition affecting the power, in reaching the decision to cancel his visa.

62    The aspect of Charlesworth J's reasoning in LJTZ on which Mr Pihama relies was referred to with apparent approval by Kyrou and Needham JJ in Po'oi v Minister for Immigration and Citizenship [2025] FCAFC 192 at [95], with whom Snaden J relevantly agreed at [1]. It has also been referred to in other cases, seemingly without any suggestion by the Minister that her Honour's reasoning is incorrect: see, for example, XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210 at [80]; and MTCQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1203 at [41] to [46]. It is also well-established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]; Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; (2017) 255 FCR 96 at [93]; and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [2] to [3] (Allsop CJ, Kerr and Mortimer JJ agreeing at [104]).

63    The Minister did not submit that LJTZ was wrongly decided in any respect. In any event, I am of the view that the reasoning in LJTZ, upon which Mr Pihama relies, is correct.

64    As I will discuss later in these reasons, Charlesworth J did not conclude that the particular breach of the condition affecting the exercise of the power in s 501BA(2) in LJTZ of itself amounted to jurisdictional error. Instead, her Honour found that the identified illogicality constituted jurisdictional error because it materially affected the outcome: LJTZ at [61].

65    The Minister accepts that the support letter was not before him at the time he decided to cancel Mr Pihama's visa. However, the Minister submits that Mr Pihama's ground of review proceeds on two premises that have not been established. Those premises are, firstly, that the Minister said that he had considered the support letter when in fact he had not and, secondly, as the support letter was not before the Minister when he made his decision then it must follow that the Minister did not consider the information that was contained in that letter.

66    Expanding on those two contentions, the Minister argues that, contrary to the first premise of Mr Pihama's argument, he did not say in his reasons for decision that he had regard to the support letter itself. The Minister submits that para 59 of the Minister's reasons, which I have reproduced earlier in these reasons at [44], makes it clear that the only source of the information that was available to the Minister regarding the contents of the support letter was the following summary of that letter that appeared at para 39 of the second AAT decision, which was before the Minister:

The Tribunal notes, and places significant weight upon, a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service of 19 September 2023. In that letter, the author reported that Mr Pihama had voluntarily engaged in counselling on seven occasions. Mr Pihama was reported to have been open about his previous drug use and crime and the considerable impact of his actions upon others. He reportedly expressed contrition at his inability to support his daughter, and ex-partner. Mr Pihama reportedly spoke of his post release plans 'to enable him to reset his life and establish a solid relationship with his daughter'.

(original emphasis)

67    The Minister also contends that, contrary to the second premise of Mr Pihama's argument, it is apparent from para 59 of the Minister's reasons that 'as a matter of substance' the Minister considered the information in the support letter. In that regard the Minister submits that, even if he was required to consider the letter, he fulfilled that obligation by considering the second AAT decision, which is demonstrated by the accurate and sufficient summary of the support letter that appears in para 59 of the Minister's reasons.

68    It is also submitted that, even if the Minister failed to consider the support letter, it would not follow that the decision to cancel Mr Pihama's visa was legally unreasonable. In that regard it is contended that, for jurisdictional error to be established on the basis relied on by Mr Pihama, he would need to establish that the failure to consider the support letter meant that no decision-maker could have decided to cancel his visa. In that regard, the Minister's argument appears to proceed on the basis that Mr Pihama's case falls into that category of cases identified in the extract taken from SSVJ, which is reproduced at [47] of these reasons, where it is contended that a decision is affected by jurisdictional error because findings or reasoning that lacked a probative basis lead to the making of a decision properly described as irrational, illogical or not based on findings or inferences of fact supported by logical grounds.

69    However, that is not Mr Pihama's case. Mr Pihama does not submit that there was a breach of the condition that the Minister be satisfied that cancellation of his visa is in the national interest because that state of satisfaction was illogical or irrational or because it was based on findings or inferences of fact that were not supported by logical grounds. Relying on LJTZ, what Mr Pihama says is that the Minister breached a condition affecting the exercise of the statutory power under s 501BA(2) that he undertake the fact-finding aspect of the power in a manner that does not exceed the bounds of legal reasonableness.

70    At the hearing of Mr Pihama's application for judicial review, senior counsel for the Minister also sought to rely on a decision of the Full Court in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156. That case concerned an appeal from a decision to dismiss an application for judicial review of a decision made under s 501BA(2), where the appellant claimed that the Minister's decision was infected by jurisdictional error because he did not accord her natural justice in the process that led to the making of the decision.

71    The Minister appeared to submit that Mr Pihama's arguments in support of his ground of review were relevantly indistinguishable from the arguments that failed in Palmer, and that they should therefore meet a similar fate. However, the appellant in Palmer argued that the power in s 501BA(2) should be construed as being subject to the rules of natural justice when the Minister invites a party to make submissions in respect of the decision. More specifically, it was contended that, by inviting the appellant in that case to comment on the information in the Minister's possession but then failing to consider all the appellant's responses, the Minister fell into jurisdictional error by denying her procedural fairness by exercising the power under s 501BA(2) unreasonably and by failing to have regard to relevant materials or act on a correct understanding of the law.

72    As the joint reasons of Derrington and Hespe JJ in Palmer reveal, the appellant in that case argued that the power in s 501BA(2) should be construed as being subject to the rules of natural justice in circumstances in which a Minister invites a party to make submissions in respect of the decision. That argument was made even though s 501BA(3) expressly provides that the rules of natural justice do not apply to a decision under s 501BA(2). Unsurprisingly, the argument was rejected as an unjustifiable attempt to rewrite or read down s 501BA(3) or to resurrect 'legitimate expectation' as a foundation of jurisdictional error.

73    By contrast, Mr Pihama does not suggest that he was denied natural justice. Instead, and as I have sought to explain, Mr Pihama's contention is that the Minister breached a condition affecting the exercise of the statutory power under s 501BA(2) because he identified that the support letter had bearing on a matter that he considered to be relevant to the national interest, namely, the risk to the Australian community and said that he had considered the letter, when in truth the letter had not been considered. Accordingly, Palmer does not assist the Minister.

74    It appears to me that there are three issues that fall to be determined. The first two issues are the factual premises of Mr Pihama's ground of review. Those issues are:

(1)    Did the Minister identify that the support letter bore on the matters he determined to be relevant to the national interest?

(2)    Did the Minister falsely state that he had considered the support letter?

75    Those two issues reflect the factual foundations that underpin Mr Pihama's ground of review and his reliance on the reasoning employed by Charlesworth J in LJTZ at [50].

76    It is necessary to consider whether these factual premises are established by reference to the Minister's reasons, bearing in mind that those reasons must not be read minutely and finely with an eye keenly attuned to the perception of error, or in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ, Kirby J agreeing at 291); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45]; and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, Edelman J agreeing at [44]).

77    If both of those factual premises are established, the third issue that arises is whether it follows that the Minister thereby fell into jurisdictional error.

78    I will deal with each of those issues in turn.

Did the Minister identify that the support letter bore on the matters he determined to be relevant to the national interest?

79    In the Minister's reasons, the Minister said that one of the matters relevant to the national interest included the need to protect the Australian community. The Minister also said that in considering that matter, he had considered, amongst other matters, the likelihood of Mr Pihama reoffending. The Minister's reasons reveal that in assessing that likelihood he considered various factors, including whether Mr Pihama was remorseful for his past offending and whether he had undergone any rehabilitation. Then, when carrying out his assessment of those two factors, the Minister expressly referred to the support letter at para 59 of the Minister's reasons. Relevantly, the Minister said:

As recorded in the [second AAT decision], [the applicant] also relies on a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service, which states that [the applicant] has engaged in counselling, been open regarding his drug use and crime and the impact that this has had on others Attachment Z.

(original emphasis)

80    'Attachment Z' comprised what was described as an 'Extract of documents filed in the second Administrative Appeals Tribunal proceedings' in an index of relevant material that was before the Minister. In my view, it necessarily follows that the Minister did identify that the support letter was relevant to the question of whether the cancellation of Mr Pihama's visa was in the national interest.

81    Having reached that conclusion, it is then necessary to consider the issue of whether the Minister falsely stated that he had considered the support letter.

Did the Minister falsely state that he had considered the support letter?

82    Although the Minister did not expressly state in his reasons for decision that he had considered the support letter, I am of the view that he did falsely represent he had done so. However, to be clear, I do not suggest that the Minister intentionally made any false statement or representation.

83    The first paragraph of the Minister's reasons on which Mr Pihama relies is para 11. That paragraph is reproduced above at [20]. In that paragraph the Minister made a general observation that he had given consideration to 'information', and not to 'documents', given by Mr Pihama. That paragraph takes its context from para 10 of the Minister's reasons, which reads:

10.    In this case, I chose to proceed without giving [the applicant] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not now be made.

84    Accordingly, para 11 of the Minister's reasons may be understood as indicating that, although the Minister had decided not to afford Mr Pihama the opportunity to be heard and that the Minister understood that that this meant that Mr Pihama would be deprived of the ability to demonstrate why his visa should not be cancelled, the Minister had nevertheless given consideration to the information that Mr Pihama had already given 'in relation to the original request for revocation and in the AAT proceedings'. On that basis, I infer that when the Minister said in para 11 of his reasons for decision that he had 'given consideration to information given by Mr Pihama in relation to the original request for revocation and in the AAT proceedings', what he meant was that he had considered all of the information Mr Pihama had given, and not merely some of it.

85    I note that Rangiah J reached a similar conclusion in MTCQ at [50] to [52]. In that case, it was argued that several documents that were before the AAT were not before the Minister when he made a decision under s 501BA(2). Relying on the same reasoning in LJTZ at [50] upon which Mr Pihama relies, the applicant in MTCQ argued that this meant that the Minister had fallen into jurisdictional error because the Minister had represented that he had considered those documents when he had not, in fact, considered them at all.

86    The following similarly worded paragraphs appeared in the relevant ministerial reasons for decision that was considered in MTCQ at [38]:

In this case, I chose to proceed without giving [the applicant] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not now be made.

I have, however, given consideration to information given by [the applicant] in relation to the original request for revocation and the AAT proceedings which resulted in the AAT revoking the decision to cancel [the applicant's] visa.

87    In MTCQ, Rangiah J found that the reference in the second of those paragraphs to 'information given by [the applicant] in relation to … the AAT proceedings' was intended to mean all of the relevant information contained in documents and oral evidence given or adduced by the applicant before the AAT. However, his Honour also said that he did not think that the Minister meant that he had necessarily given consideration to all the documents themselves or to all the information those documents contained where that information was, or appeared to be, adequately summarised in the AAT's reasons.

88    In my view, that same conclusion cannot be reached in this case. It may be noted that in MTCQ the Minister said that he had 'given consideration to information given by [the applicant] in relation to the original request for revocation and the AAT proceedings' (emphasis added). In contrast, in para 11 of the Minister's reasons in this case the Minister made it clear that his consideration of the information given by Mr Pihama was not limited to any summary of that information in the delegate's decision or in the second AAT decision. Instead, the Minister expressly said at para 11 of his reasons for decision that he had:

given consideration to information given by Mr Pihama in relation to the original request for revocation and in the AAT proceedings, including as reflected in the first and second decision records of the AAT …

(emphasis added)

89    There is no dispute that the support letter was a document that contained information that Mr Pihama had 'given' in relation to the second AAT decision.

90    A construction of the Minister's reasons that he was representing that he had given consideration to all of the relevant information Mr Pihama had given to the AAT, including the information in the support letter, is in my view supported by para 47 of the Minister's reasons. In that paragraph the Minister represented that he had 'considered available information' (emphasis added) as to matters concerning any indications of Mr Pihama's remorse and the extent of his rehabilitation. As appears from the contents of the support letter itself, which I have reproduced earlier at [35] of these reasons, Mr Pihama's remorse and the extent of his rehabilitation is what that letter was about.

91    A conclusion that the Minister had represented that he had considered all of the relevant information that Mr Pihama had given to the AAT, including the support letter, is reinforced by para 59 of the Minister's reasons.

92    As can be seen from [26] of these reasons, the format the Minister's reasons took was one in which the Minister made various statements and findings, immediately followed by a reference or references to the materials that appeared in specific attachments to the Department submission the Minister relied on to support the making of those statements and findings. Consistently with that approach, the Minister said the following at para 59 of his reasons for decision:

59.    As recorded in the [second AAT decision], [the applicant] also relies on a letter from the Government of Western Australia Mental Health Commission Alcohol and Drug Support Service, which states that [the applicant] has engaged in counselling, been open regarding his drug use and crime and the impact that this has had on others Attachment Z. [The applicant] was also recorded as expressing contrition for his inability to support his daughter and ex-partner Attachment I.

(original emphasis)

93    As I have already noted, 'Attachment Z' was attached to the Department submission, and was referred to in an 'INDEX OF RELEVANT MATERIAL' which was also attached to those submissions as an 'Extract of documents filed in the second Administrative Appeals Tribunal proceedings'. 'Attachment I' is referred to as the reasons for decision for the second AAT decision.

94    When read in the context of the Minister's reasons as a whole, and having particular regard to the format adopted in those reasons as discussed above, the reference to 'Attachment Z' at the end of the first sentence of para 59 carries with it the strong implication that the support letter was one of the documents that formed part of the materials that were annexed to the Department submission. When read in the specific context of paras 11 and 47 of the Minister's reasons, para 59 not only implies that the support letter had been before the Minister at the time he made his decision but that he had personally read and considered its contents. In particular, in para 59 the Minister represented that, based on his personal reading of the support letter, an appropriate summary of the information in the letter was that Mr Pihama had 'engaged in counselling, been open regarding his drug use and crime and the impact that this has had on others'.

95    I do not accept the contention that, in para 59 of his reasons for decision, the Minister instead represented that the only relevant information he personally considered was the summary of the support letter that appeared at para 39 of the second AAT decision which was reproduced at 'Attachment I'. It is true that, at the beginning of para 59, the Minister began with a reference to what had been recorded in the second AAT decision. Further, the Minister's summary of the support letter that appears in that paragraph is similar to the AAT's own summary of that letter. However, I am of the view that, had the Minister intended to represent that his consideration of the support letter was limited to the information about that letter that appeared in the second AAT decision, the Minister would have referred to 'Attachment I' to indicate the source of his summary of the letter, instead of 'Attachment Z'. In that regard, it may be noted that in the last sentence of para 59, where the Minister stated that Mr Pihama 'was also recorded as expressing contrition for his inability to support his daughter and ex-partner', the Minister represented that he had relied on 'Attachment I' as the source of that information. Further, where the Minister intended to indicate elsewhere in his reasons for decision that 'Attachment I' supported a statement or a finding, reference to that attachment was made.

96    For these reasons, I am of the view that the Minister did falsely state that he had considered the support letter.

Was the Minister's decision to cancel Mr Pihama's visa affected by jurisdictional error?

97    As I have already said, the Minister decided that the risk to the Australian community was relevant to the question of whether cancellation of Mr Pihama's visa was in the national interest for the purposes of s 501BA(2). In turn, the Minister determined that indications of Mr Pihama's remorse and the extent of his rehabilitation constituted factors that were relevant to that issue. In those circumstances it was plainly illogical for the Minister to conclude that the support letter bore upon those factors, and to represent that he had personally considered that letter in conducting his fact-finding task concerning those factors, when that is not in fact what had occurred. Consistent with the reasoning in LJTZ upon which Mr Pihama relies and which I have described earlier in these reasons, I am of the view that this illogicality constitutes a breach of a condition affecting the exercise of the power namely that the Minister conduct the fact-finding task attending the exercise of the power in a manner that is logical and rational.

98    However, it does not necessarily follow that the Minister's decision to cancel Mr Pihama's visa was affected by jurisdictional error. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said at [4] to [7]:

A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).

Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn - '[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute'.

In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a 'threshold of materiality' in the event of non-compliance.

(original emphasis; citations omitted)

99    The error in this case is concerned with the manner in which the Minister conducted the fact-finding task that attended the exercise of his power to cancel a visa under s 501BA(2) of the Migration Act. In the circumstances of this case, it is obvious that the nature of that error is such that it will not be jurisdictional regardless of any effect on the Minister's decision to cancel Mr Pihama's visa. Further, in light of the range of factors the Minister determined were relevant to whether it was in the national interest to cancel Mr Pihama's visa, the potential for an effect on the decision is not inherent in the nature of the error I have found occurred.

100    Accordingly, for the Minister's error to be jurisdictional there must be a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. I note that Charlesworth J adopted the same approach in LJTZ, as she found at [61] that the error in that case 'materially affected the outcome and so constituted jurisdictional error'.

101    In his written submissions, the Minister says that if the error contended for by Mr Pihama is established, he does not put materiality in issue. However, it seems likely that this concession is based on the Minister's understanding that, for Mr Pihama's ground of review to be successful, it would be necessary for the Court to conclude that there was unreasonableness in the final result. In those circumstances, it is appropriate that I consider whether there is a realistic possibility that the decision to cancel Mr Pihama's visa could have been different if the Minister's error had not occurred.

102    As I have already explained, the Minister identified that the matters of national interest that were relevant in Mr Pihama's case included the protection of the Australian community. In considering that matter, the Minister assessed the seriousness of Mr Pihama's criminal conduct, the likelihood of him reoffending and the risk that he posed to the Australian community if that likelihood materialised. Ultimately the Minister reached the following conclusion about the need to protect the Australian community:

72.    Considering the nature and seriousness of [the applicant's] conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of [the applicant's] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs very strongly in support of cancellation in this case in the National Interest.

(emphasis added)

103    As the extract taken from the Minister's reasons at [26] above demonstrates, this conclusion was informed by findings the Minister made about the extent to which Mr Pihama had been rehabilitated. More specifically, and in a context in which the Minister had also found that Mr Pihama's substance abuse, specifically his use of drugs, was 'likely a driving factor for his offending', that conclusion was informed by the Minister's assessment of the extent of Mr Pihama's rehabilitation in connection with the use of drugs. In that regard, the Minister said at para 67 of his reasons for decision that,

[d]espite the evidence of [the applicant's] rehabilitation efforts, I agree with the [AAT's] assessment in the [second AAT decision] that it could not be satisfied that he was 'fully rehabilitated within the prison and immigration detention systems'.

(original emphasis)

104    Further, at para 70 of the Minister's reasons, he said that he remained concerned that Mr Pihama may not be rehabilitated despite his stated intention to stop using 'addictive substances' and to continue to engage in rehabilitation in the community.

105    The support letter was a report from a counsellor from the Alcohol and Drug Support Service of the Government of Western Australia's Mental Health Commission, which recorded Mr Pihama's drug rehabilitation efforts with that service since he first contacted it on 4 July 2023. The counsellor who authored the support letter wrote in positive terms about Mr Pihama's efforts to abstain from drug use and also about the steps he had taken to ensure that he would remain drug free if he were to be allowed to re-enter the Australian community. Given its status as an independent and obviously reliable source, the support letter was a potentially very significant source of information about the extent of Mr Pihama's rehabilitation, and therefore about the risk he posed to the Australian community. It is also relevant to note that the support letter was the most up-to-date and independent information concerning Mr Pihama's drug rehabilitation that was available to have been considered by the Minister.

106    Nevertheless, it must be appreciated that, although the support letter was not before the Minister at the time he decided to cancel Mr Pihama's visa, the Minister did in fact consider some of the information that appeared in the support letter. In that regard, there is no dispute that the Minister considered the second AAT decision which, as I have already noted, contained a short summary of the support letter: see [65] of these reasons. However, that summary does not contain all of the relevant information that would have been available to the Minister had he considered the support letter itself. Importantly, the summary made no reference to the fact that the focus of the counselling sessions was on Mr Pihama's attitude to drug use and his plans on how to live without drugs when he is back in society, including 'relapse prevention, goal setting, problem solving, challenging unhelpful thinking and mindfulness'. The summary in the second AAT decision also did not refer to Mr Pihama's willing engagement in counselling sessions or to the fact that he:

used the time to think through how the potential obstacles and threats may challenge his resolve not to relapse in the future, and how to be aware of and address these issues with strategies and support, before they could catch him up.

107    Further, the summary did not touch upon the support letter's reference to Mr Pihama having spoken about his 'plans for post release housing, employment and support, both social and professional, to enable him to reset his life and establish a solid relationship with his daughter'.

108    In any event, and importantly, the summary in the second AAT decision did not accurately reflect the overall positivity of the support letter which the Minister could have gleaned from considering the terms of the letter itself.

109    For these reasons I am of the view that, had the Minister considered the support letter, there is at least a realistic possibility that his decision to cancel Mr Pihama's visa could have been different. Accordingly, I conclude that the Minister's error was jurisdictional.

Conclusion

110    For all of the above reasons, the Minister's decision under s 501BA(2) to set aside the second AAT decision and to cancel Mr Pihama's visa was affected by jurisdictional error. I would grant the relief sought and order that the Minister pay Mr Pihama's costs.

Associate:

Dated:    1 May 2026