Federal Court of Australia

VNVT v Minister for Immigration and Citizenship [2026] FCA 698

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    Subject to order 3, the Applicant pay the Respondents’ costs as agreed or assessed.

3.    If any party wishes to seek an order as to costs which differs from that set out in order 2:

(a)    that party is to file, within 7 days, written submissions of no more than 5 pages together with any evidence upon which it wishes to rely on the issue of costs;

(b)    the other party is to file any written submissions in response of no more than 5 pages, and any evidence on which it wishes to rely on the issue of costs, by 7 days after receipt of the material referred to in order 3(a); and

4.    The issue of costs will be decided on the papers.

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

REASONS FOR JUDGMENT

BENNETT J

1    This is an application for review of a decision by the Administrative Review Tribunal (the Tribunal) to affirm a decision of a delegate of the then Minister for Home Affairs (the Minister) not to revoke a cancellation decision made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2    The application advances a single ground. Despite impressive advocacy by the Applicant’s counsel (acting pro bono) the application must be dismissed for the reasons that I explain below.

background

3    On 15 October 2004, the Applicant, VNVT, was granted a Global Special Humanitarian Visa (Class XB) (Subclass 202).

4    On 3 June 2019, the Applicant received two relevant sentences:

(1)    first, he was sentenced to 13 months’ imprisonment for breaching a community corrections order and for a series of offences committed in 2018; and

(2)    second, he was sentenced to 12 months’ imprisonment for contravening a family violence intervention order and unlawful assault.

5    These matters meant that the Applicant had a substantial criminal record such that he did not pass the character test, under s 501(6)(a) of the Act. That led to the cancellation of the Applicant’s visa on 22 August 2019 by a delegate of the Minister under s 501(3A) of the Act (the First Cancellation Decision).

6    On 9 June 2020, a delegate of the Minister decided not to revoke the First Cancellation Decision under s 501CA(4) of the Act (the First Non-Revocation Decision). However, in September 2020, the Tribunal substituted for that decision a decision revoking the First Cancellation Decision. Thus, the Applicant was able to stay in Australia despite his serious offending.

7    The Applicant then again offended and on 25 July 2022 he was sentenced to 12 months’ imprisonment after pleading guilty to the following offences: contravening a family violence safety notice intending to cause harm or fear for safety, common law assault, entering a private place without authority or excuse, and two counts of contravening a family violence safety notice (the 2022 Conviction). The transcript of the proceedings before the Magistrates’ Court of Victoria which contained a summary of the Applicant’s offending was before the Court, and in part read as follows:

On 5 November 2021 at approximately 5 pm, the victim was at her home address of 16/4 Morshead Street in Ascot Vale, and heard banging noises from inside her kitchen. The victim went to her kitchen and observed the accused with one leg through the window. The accused damaged the security protection on the windows to gain access to the kitchen. The victim observed the accused throw his backpack on the floor of the kitchen, and the victim questioned the accused stating, “What are you doing?”, and the accused replied, “Open the door”.

The victim ran out of her unit, and the accused chased after the victim. The accused caught the victim out on the nature strip on Morshead Street in Ascot Vale, and tackled the victim to the ground. The accused pushed her down by the shoulders and chest where she couldn’t breathe for a period of time. Members of the public, and witnesses… were walking along Morshead Street and heard yelling, and observed the accused sitting on top of the victim, holding her down. As [the witnesses] got closer, they heard the victim yelling, “He’s trying to choke me”.

The accused got off the victim, and continued to yell at the victim who was still on the ground. The victim yelled at the accused to get his items that were inside her house and leave. The accused re-entered the unit. The accused exited the address with his backpack, and a bottle of wine. The accused left at approximately 6.05 pm, however, he returned to the address a further three times. On the third time, at approximately 6.20 pm, the accused tackled the victim back onto the nature strip on Morshead Street, pinning her to the ground with his hands, and the lifted the bottle of wine over his head, and appeared the threaten the victim, which was witnessed by … The accused left the area again, the witnesses took the victim back to the address, and called Triple-0.

8    On 18 August 2022, a delegate of the Minister again cancelled the Applicant’s visa under s 501(3A) of the Act (the Second Cancellation Decision). The Second Cancellation Decision was based on the Applicant:

(1)    having a substantial criminal record and not passing the character test because of the 2022 Conviction; and

(2)    serving a sentence of imprisonment on a full-time basis.

9    On 20 October 2022, the County Court of Victoria heard an appeal against the Applicant’s sentence for the 2022 Conviction. The appeal was heard under s 254 of the Criminal Procedure Act 2009 (Vic) and involved a de novo consideration of the sentence (Quick v Creanor; Taylor v Wilkins [2015] VSCA 273; 49 VR 479 at [19] (Maxwell P, Beach and Kaye JJA)). Certain charges were struck out, and the Court otherwise re-sentenced the Applicant. This process did not require the establishment of error in the original decision. The County Court re-sentenced the Applicant to a period of imprisonment of 286 days.

10    On 30 May 2023, a delegate of the Minister decided not to revoke the Second Cancellation Decision under s 501CA(4) of the Act (the Second Non-Revocation Decision). On 24 August 2023, the Tribunal affirmed the Second Non-Revocation Decision. This Court then quashed the decision of the Tribunal affirming the Second Non-Revocation Decision and ordered the Tribunal to re-make the decision according to law (CIJ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1128 (O’Callaghan J)).

11    On 2 June 2025, the Tribunal again affirmed the Second Non-Revocation Decision. The Tribunal in that decision specifically considered and referred to the reduction of the Applicant’s sentence for the 2022 Conviction, reasoning that the Second Cancellation Decision remained valid, because it was based on information that was correct at the time that the decision was made.

12    It is the Tribunal’s decision, the Second Cancellation Decision and the Second Non-Revocation Decision that are the subject of challenge in this proceeding. The sole ground advanced in support of the challenge is that the Tribunal did not have lawful authority to make a non-revocation decision in respect of the Applicant under s 501CA(4) because a statutory precondition to the making of such a decision – namely a valid cancellation decision under s 501(3A) – had not been met because the relevant cancellation decision was based on a sentence that was reduced on appeal to a term of imprisonment of less than 12 months.

Legislation

13    Section 501(3A) of the Act requires the Minister to cancel a visa in certain circumstances. It provides as follows:

501 Refusal or cancellation of visa on character grounds

…

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

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

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

14    Section 501(6) concerns the character test. It relevantly provides:

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

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

…

15    The term “substantial criminal record” is defined in s 501(7), which relevantly provides as follows:

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

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

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

…

16    Section 501CA enables a person whose visa has been cancelled under s 501(3A) to make representations to the Minister to have the cancellation revoked, and empowers the Minister to revoke the cancellation in certain circumstances. It provides as follows:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(3A)    The notice under subsection (3) must be given in the prescribed way.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.

17    It is in the context of this statutory framework that the present application is to be considered.

Argument

18    The Applicant’ argument is that the Tribunal’s decision should be set aside because the Second Cancellation Decision and the Second Non-Revocation Decision are invalid. The argument as put by the Applicant involves four steps:

(1)    First: the non-revocation decision under s 501CA(4) will be invalid if it is made in respect of an invalid cancellation decision under s 501(3A).

(2)    Second: a cancellation decision under s 501(3A) will be invalid if:

(a)    it is based on the existence of a “term of imprisonment of 12 months or more” under s 501(3A)(a); and

(b)    the term of imprisonment on which it is based is later set aside or reduced to a period of less than 12 months.

(3)    Third: in this case the Second Cancellation Decision is invalid because it was based on the Applicant’s sentence for the 2022 Conviction, that was later reduced to a term of imprisonment of less than 12 months. It therefore follows that the Second Non-Revocation Decision is also invalid.

(4)    Fourth (if necessary): it is said that the invalidity of the Second Cancellation Decision is not avoided because of the principle of materiality.

19    The Applicant argues that if that analysis is accepted, then the Applicant’s visa has been in force at all times since the Second Cancellation Decision was purportedly made because it was never validly cancelled and there was no valid non-revocation decision.

Analysis

20    It is convenient to adopt the four-step process set out at [18] above.

First step: Is the non-revocation decision under s 501CA(4) invalid if it is made in respect of an invalid cancellation decision under s 501(3A)?

21    The Applicant asserts that the starting point for the analysis is that a non-revocation decision under s 501CA(4) will be invalid if it is made in respect of an invalid cancellation decision under s 501(3A). The Applicant relies upon the comments of the Full Court in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 (Rares, Yates and Snaden JJ) (XJLR). In XJLR, Rares J (with whom Yates J agreed) held that a primary judge had erred in deciding that a legally ineffective decision to cancel a visa under s 501(3A) can be “cured” by the Tribunal on a review of a delegate’s s 501CA(4) decision (XJLR at [51]). The Minister accepts this proposition for the purposes of the present argument so that if it is established that the cancellation decision under s 501(3A) was invalid, then the non-revocation decision under s 501CA(4) could likewise not stand.

22    It follows that the issue in this case substantially turns on the second step, to which I now turn.

Second step: When is a decision under s 501(3A) invalid?

23    It is not controversial that the Minister must cancel a visa under s 501(3A) if two statutory criteria are met: first, the Minister must be satisfied that “the person does not pass the character test” for one of the reasons identified in s 501(3A)(a)(i) or s 501(3A)(a)(ii). Second, under s 501(3A)(b), the person must be serving a sentence of imprisonment on a full-time basis.

24    In this case, the circumstances which caused the Applicant to fail the character test were: first, that the Minister’s delegate was satisfied that he had a “substantial criminal record” because he had been “sentenced to a term of imprisonment of 12 months or more” (ss 501(3A)(a)(i), 501(6)(a) and 501(7)(c)); second, that he was serving that sentence on a full-time basis (s 501(3A)(b)).

25    The Applicant’s submissions in this case focused on a particular construction of the first statutory criterion in s 501(3A). The construction advanced is that, if a cancellation decision made under s 501(3A) is based on the existence of a term of imprisonment of 12 months or more, and that term of imprisonment is later set aside or reduced to a period of less than 12 months, then the decision made under s 501(3A) is necessarily invalid or invalidated.

26    For the Applicant’s submission to be correct, it must be that the existence of a “term of imprisonment of 12 months or more” under s 501(3A)(a) is both an objective statutory criterion, and a criterion with no temporal element. That is because (it is argued):

(1)    if the criterion in s 501(3A)(a) is objective, the Minister’s state of satisfaction will be irrelevant, and it will be for the Court to review the jurisdictional fact of the term of the sentence; and

(2)    if the criterion contains no temporal element, then the fact that the sentence was subsequently reduced may be said to operate to alter or remove the existence of the statutory requirement even after its initial operation.

27    I have considered each issue, below.

The criteria in s 501(3A)

28    Section 501(3A), in terms, directs attention to the state of satisfaction of the Minister. It does so by specifying that the visa must be cancelled if “the Minister is satisfied” that the person does not pass the character test for one of the reasons identified. One of those reasons is that the person has a “substantial criminal record” which in turn, is defined to mean, relevantly, that the person “has been sentenced to a term of imprisonment of 12 months or more”.

29    The Applicant argues that because that state of satisfaction hinges upon a classically objective matter – a specific sentence of imprisonment – it is an objective jurisdictional fact. This is an argument with some appeal given the necessarily objective nature of the term of a sentence of imprisonment (see Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 (Falzon) at [48] (Kiefel CJ, Bell, Keane and Edelman JJ)).

30    If it were an objective jurisdictional fact, then it is said that its non-existence will invalidate the step taken in reliance upon it. That can be distinguished from a subjective statutory criterion which a primary decision-maker is entitled to authoritatively determine (Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 (Timbarra) at [40] (Spigelman CJ, with whom Mason P and Meagher JA agreed); Lumumba v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FCA 1523 (Lumumba) at [173] (Mortimer J) and the cases cited therein). In Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636; 267 FCR 126, Mortimer J summarised the core propositions from Timbarra as follows (at [165]):

(a) Parliament may make any fact a jurisdictional fact and where it does so, the consequence is that the fact “must exist” objectively (at [37]);

(b) To find that a fact is a jurisdictional fact, the Court must conclude, as a matter of statutory construction, that Parliament intended the presence (or absence) of the fact to invalidate the exercise of power (at [37]);

(c) Both “objectivity” and “essentiality” (Spigelman CJ’s terms) are inter-related elements in the determination of whether a matter is a jurisdictional fact (at [38]), albeit that the ordinary principles of statutory construction are to be applied (at [39]);

(d) A determination that a matter is not a jurisdictional fact involves a conclusion, after the process of construction is completed, that Parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact, subject to judicial review of that determination (at [41]);

(e) Where “a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — ‘opinion’, ‘belief’, ‘satisfaction’ — the construction is often, although not necessarily, against a conclusion of jurisdictional fact” (at [42]);

(f) The location in the statutory structure of the alleged jurisdictional fact may be critical. Where the alleged fact is located in a provision conferring power, or arises in the course of the consideration by that repository of a power of its exercise, then this may suggest the fact is not intended to be jurisdictional. In contrast, if the fact is located as a preliminary or ancillary matter to the exercise of power, it may indicate Parliament intended the existence of the fact, objectively, to condition the exercise of power (at [44], [51]);

(g) Another way to put this factor is by asking the question whether the fact is “a fact to be adjudicated upon in the course of the inquiry” as distinct from an “essential preliminary to the decision making process” (at [52], referring to Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443). Spigelman CJ then lists a number of other authorities dealing with this factor (at [53]-[54]);

(h) Other aspects of a given statutory scheme may inform the characterisation the Court must make: see generally [67]-[81], where Spigelman CJ analyses a number of features of the Environmental Planning and Assessment Act 1979 (NSW) and the related Threatened Species Conservation Act 1995 (NSW).

31    Thus in Lumumba, Mortimer J considered that the criteria in ss 10B(1)(a) and (1)(b) of the Australian Citizenship Act 1948 (Cth) were jurisdictional facts because the operation of the provision turned upon the existence of objective facts – one being, did the person have a parent who was an Australian citizen at the time of their birth. It was important to the analysis that there were no textual suggestions that the matter depended upon the opinion or satisfaction of an individual decision-maker and the matters in each subsection were ascertainable as a matter of objective fact (Lumumba at [175]).

32    As emphasised in the authorities, the determination of whether something is a jurisdictional fact is an exercise of construction, so it is the text of the statute, when read in its proper context, which must govern. The task of statutory construction must begin and end with the consideration of the text itself (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ)).  The statutory text must be considered in its context, encompassing its purpose, history and any extrinsic materials (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [14] (Kiefel CJ, Nettle and Gordon JJ). Context is analysed as part of this first stage, rather than at some later stage where ambiguity might be thought to arise (SZTAL at [14]).

33    In Falzon, the High Court considered the operation of s 501(3A) in the context of an application brought by a Maltese national who had entered Australia at the age of three, and obtained an Absorbed Person Visa and Class BF Transitional (Permanent) Visa after a lengthy period of living in Australia. He subsequently committed serious drug-related offences and his visas were cancelled by a delegate of the Minister pursuant to s 501(3A). The Assistant Minister subsequently decided not to revoke the cancellation decision under s 501CA(4). Part of the plaintiff’s argument in that case was that he was detained, in part, under and for the purposes of s 501(3A) of the Act. The Court was asked to consider whether s 501(3A) was invalid because it infringed Ch III of the Constitution. Certain features of s 501(3A) were relied upon to support the argument that s 501(3A) purported to impermissibly invest the judicial power of the Commonwealth in the Minister. One such feature was the finality or conclusiveness of the power in s 501(3A). The plaintiff argued that the operation of s 501(3A) was based upon a “primary and characteristic factum that the person has committed an offence or offences…” (at [46]). While their Honours accepted that s 501(3A) “constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia” (at [45]) they also emphasised that before the power under s 501(3A) could be exercised, “the Minister must reach a positive state of satisfaction in relation to the prior offending” (at [46]).

34    Even though the fact upon which the state of satisfaction must be formed is objective in nature that does not mean that the state of satisfaction expressly required by the statute is to be erased. While it is difficult to imagine a circumstance in which the Minister (or the Minister’s delegate) could fail to be satisfied of such an objectively identifiable fact, it does not follow that the state of satisfaction is not required to be reached: it remains the state of satisfaction itself which triggers the operation of the provision. The reference in the explanatory memorandum to the factum being that the person “objectively does not pass the character test” (Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at [32] (emphasis added); see also Commonwealth, Parliamentary Debates, House of Representatives, 24 September 2014, 10326) does not alter the clear words of the statute (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]). In any event, the explanatory memorandum does no more than indicate that the state of satisfaction is to be predicated upon an underlying fact which is objectively identifiable.

35    The Applicant relies upon Timbarra. In that case, it was said that the fact that a state of satisfaction is identified usually, “although not necessarily”, indicates that a subjective test is to be applied (at [42] (Spigelman CJ, Mason P and Meagher JA agreeing)). Timbarra was a case about whether a species impact statement was required in accordance with certain provisions of the Threatened Species Conservation Act 1995 (NSW) and the Environmental Planning and Assessment Act 1979 (NSW), and whether the decision as to whether such a statement was required constituted a jurisdictional fact (or condition precedent) which the Land and Environment Court was required to determine for itself. Chief Justice Spigelman (at [42]) said that where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker, including “satisfaction”, the construction is:

often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that the mental state is a particular kind of jurisdictional fact... Where such words do not appear, the construction is more difficult. (citations omitted)

36    Timbarra stands for the orthodox proposition that the identification of a state of satisfaction is a clear indicator that the issue is the lawfulness of the satisfaction such that the Court does not determine for itself whether the state of satisfaction is correct (KTW25 v Minister for Immigration and Citizenship [2025] FCA 1391 at [77] (Hill J)). While the Court in Timbarra noted that the usual position is not always applicable, the mere fact that the prison sentence is objectively determinable does not operate to displace Parliament’s choice in adopting the state of satisfaction as the relevant trigger for the Minister’s power under s 501(3A).

37    This conclusion is underscored by the notion that not all of the criteria in s 501(3A)(a) are necessarily so objective. The Applicant submitted that there can be a degree of subjective assessment in other aspects of the provision, particularly s 501(3A)(a)(ii) which includes a reference to offences “involving a child”, a more open and subjective concept that could encompass a range of charged acts where a child was present, or the victim. Such a reference may well call for a more subjective analysis requiring the Minister’s state of satisfaction beyond the fact of the charge sheet.

38    It is also relevant to the construction exercise that Parliament has not imposed a similar requirement as to the Minister’s state of satisfaction under s 501(3A)(b), where the Act looks only to whether the person is serving a sentence of imprisonment on a full-time basis for a particular category of offence. Where Parliament has used two different terms in closely adjacent provisions, it may be a (mild) indication that different meanings were intended in the different provisions (Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; 293 FCR 330 at [146] (O’Bryan J, with whom Besanko and Lee JJ agreed)). However, it is not a proposition of significant weight in the present context.

39    A similar provision of the Act was considered in NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187; 300 FCR 582 (Collier, Derrington and Downes JJ). The provision considered in that case contained criteria that are relevantly the same as those in the provisions under consideration in this case. They were relevantly:

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

…

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.

40    Justice Derrington in that case said that s 501BA(2) was structured such that, prima facie, the discretionary power that it conferred was enlivened upon the satisfaction of the “dual subjective jurisdictional facts found in paragraphs (a) and (b)” (at [108]).

41    The Applicant argues that severe consequences flow from the statutory criteria in s 501(3A) being met and that this tells in favour of an objective construction. The Applicant submits further that an objective construction is supported by the presumptions that Parliament does not intend to interfere with fundamental rights such as liberty in the absence of unambiguous language, or for statutes to produce “irrational or unjust” results. While it is true that s 501(3A) can affect a person’s liberty, it does not follow that the provisions ought to be read in a manner which departs from the constructional choice made by Parliament. I do not accept that the outcome reached is “irrational or unjust” in a manner that might suggest a different reading of the statute is appropriate (Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [45] (French CJ, Kiefel, Bell and Keane JJ)). As explained below, the statutory scheme sets out a process for responding to changes in sentences which permits revocation of a cancellation decision where a person subsequently passes the character test they had previously failed (see [53]-[55] below).

42    It follows that s 501(3A)(a) requires the identification of the Minister’s state of satisfaction that the matters in the sub-paragraphs exist. It does not invite the Court to consider for itself the existence of those matters. The Applicant accepted that if he was not successful in relation to this aspect of the construction argument, then the application could not succeed. Nonetheless, I turn now to consider whether there is a temporal element to the state of satisfaction, both in case I am wrong in my first conclusion, and because the matter was so thoroughly and carefully argued before me.

Does the criterion in s 501(3A)(a) contain a temporal element?

43    The Applicant argues as a matter of construction of s 501(3A)(a) that the “term of imprisonment” referred to is not a criterion that contains a temporal element. In other words, it is said to be concerned with whether a relevant term of imprisonment exists whenever that question happens to be asked, not whether it existed at the time the cancellation decision was made. Many of the constructional arguments that the Applicant deployed to argue that the power in s 501(3A) fastened upon an objective jurisdictional fact were deployed again in support of this construction, i.e. the use of objective criteria and the significant consequences of the criteria being met. However, as I have explained, I consider the better view is that it is a subjective state of satisfaction which governs the operation of the power.

44    It was argued that s 501(3A)(a) may be contrasted with s 501(3A)(b): while the latter provision operates where a person “is serving” a term of imprisonment, s 501(3A)(a) is not so confined. It is said that the difference points to a different purpose, being that s 501(3A)(a) is directed to ensuring that people who pose a sufficient risk to the community are captured by the provision, while s 501(3A)(b) is directed to continuity of detention. It was argued in effect that the statutory purpose of s 501(3A)(a) is not served in the circumstances of a case such as this, because a person whose sentence is subsequently reduced to a term of imprisonment of under 12 months could not be said to pose the relevant level of risk.

45    The first difficulty with that argument is that the identification of the 12-month period is, in any event, a blunt proxy for risk to the community. More significantly however, the Act specifically provides for a change of sentence and a mechanism for reconsideration by the Minister if such a change occurs (see [53]-[55] below). In circumstances like the present, where there was no error in the original decision to impose a sentence of a term of imprisonment of 12 months, it is readily understandable that the approach intended by Parliament was that s 501(3A) may operate upon a valid sentence even where it was subsequently reduced. Such an approach is not inconsistent with the overall purpose of the statutory provisions.

46    In any event, a statute rarely pursues one aim at all costs (Spall v Minister for Home Affairs [2025] FCAFC 75; 309 FCR 460 at [15] (Button, McDonald and Bennett JJ), citing Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [7] (Gleeson CJ)) nor does construction depend upon the circumstances of an individual case. In Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 (Parker), it was argued that a decision made by the Minister to cancel the appellant’s visa under s 501(2) of the Act was affected by jurisdictional error. Section 501(2) is a different provision. At the time it relevantly provided:

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

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

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

47    Section 501(6) relevantly provided that for the purposes of s 501 a person did not pass the character test if:

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

48    Section 501(7) relevantly provided:

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

    …

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

49    There was a conviction that had been annulled (2014 Conviction). The 2014 Conviction was not taken into account for the purposes of the Minister’s assessment of the character test, but rather informed the exercise of his discretion once he was reasonably satisfied that the appellant did not pass the character test based on a separate conviction (see [34]). It was submitted that the Minister erred by taking into account the 2014 Conviction because it had been annulled and so should be taken to have never existed. The Full Court rejected that approach. In a separate ground, it was argued that the Minister’s decision was unreasonable because the 2014 Conviction “triggered” the Minister considering the exercise of his cancellation powers, and that conviction, having been subsequently annulled, ought to be taken to be a nullity for all relevant purposes. It was said, therefore, that the entire reconsideration was invalid. It was further submitted that the Minister ought to have taken into account the possibility of annulment irrespective of what he was told by the appellant. That approach was rejected. The Full Court (Griffiths and Perry JJ, with whom Mortimer J agreed) reasoned that the approach advocated for by the appellant would create “unacceptable and unreasonable consequences”, effectively requiring the Minister to defer a decision on cancellation until the expiration of all time limits for appeal (which were in some cases two years, and in others open-ended) (at [59]). The Full Court observed that there was no authority to support the appellant’s submission that, in reviewing the Minister’s cancellation decision under the rubric of legal unreasonableness, evidence was admissible to establish facts which occurred after the decision was made (at [60]). Their Honours considered such a conclusion was “hardly surprising”, concluding (at [61]) that “the question on judicial review must be approached without regard to the subsequent fact that the 2014 conviction was annulled”.

50    Similarly, Mortimer J said that the appellant’s submission that the “outcome” of the Minister’s cancellation decision was, after the annulment of the 2014 Conviction, legally unreasonable “misunderstands the Court’s function on judicial review”. Her Honour said (at [77]) that:

The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular case), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.

51    The decision in Parker is not on all fours with the present case and doubt has been expressed over some aspects of the reasoning of the Full Court as it relates to other aspects of the decision (Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 at [27] (the Court)). However, it required an analysis of the position where the trigger for a particular power was a conviction that was subsequently annulled, and the propositions adverted to above were not relevantly doubted by the High Court.

52    In this case the sentence of imprisonment was never annulled in the same way that the 2014 Conviction was in Parker. It was simply reduced upon the re-consideration carried out by the County Court (see [9] above). In any event, the Full Court in Parker accepted that the question for a Court on judicial review was the lawfulness of the decision at the time that it was made. In this case at the time the Second Cancellation Decision was made under s 501(3A) the Applicant had a substantial criminal record within the meaning of the Act. The challenge to that decision depends upon the notion that the subsequent change to the sentence retroactively invalidates the earlier decision. That assertion is at odds with authority about the nature of judicial review, and the statutory framework which emphasises the paramountcy of the Minister’s state of satisfaction at the point in time that the power is exercised.

53    I accept that Parliament has used the somewhat blunt instrument of a 12-month sentence as a proxy for risk to the community. However, the focus within the statutory scheme upon the timing of the person’s imprisonment tends to support the notion that there is a temporal aspect to the exercise of the power. Parliament has also provided for the situation where there is a relevant change in circumstance after a s 501(3A) decision is made, through the operation of s 501CA(4), which provides that the Minister may revoke the original decision under s 501(3A) if:

(a)    the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

54    The power in s 501(3A) must be exercised before s 501CA comes into operation. Because the power in s 501(3A) can only be exercised upon the Minister’s satisfaction that the character test is not passed, the provision in s 501CA(4) permitting the Minister to revoke the original decision if satisfied that the person does pass the character test must be a matter considered at a subsequent point in time (being the time following the person making the representation referred to in s 501CA(4)(a)). As a matter of logic therefore, s 501CA(4)(b)(i) only has work to do if there has been a change of circumstance capable of affecting whether or not the person passes the character test, or the Minister reached the state of satisfaction required by s 501(3A)(a) by mistake. This suggests that Parliament has provided a pathway for the Minister to consider the position where there is a change in one of the factors leading to the character test not being passed. That militates against a construction which would automatically nullify a decision under s 501(3A) by a subsequent change in position.

55    That position is further underscored by the provisions in s 501(10) which provide for a change to a person’s sentence or conviction in the context of the Minister’s assessment of the character test. Section 501(10) provides that:

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)    the conviction concerned has been quashed or otherwise nullified; or

(b)     both:

(i)    the person has been pardoned in relation to the conviction concerned; and

(ii)    the effect of that pardon is that the person is taken never to have been convicted of the offence.

56    The specific identification of circumstances in which a subsequent change to a sentence of imprisonment is to impact the character test that does not include alteration of a sentence upon review is a statutory indicator that supports the conclusion that a sentence is relevant for the purposes of the character test at the time the power is exercised.

57    For the reasons explained above, the decision depends upon the Minister reaching the state of satisfaction identified in s 501(3A)(a). It follows as a matter of logic that the relevant state of satisfaction is one that must be in existence at the time that the decision is made. That approach is consistent with LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT) in which the High Court restated key principles about the conduct of judicial review. The High Court in that case explained that on judicial review, the question of whether an error has occurred is “wholly backward-looking” and “to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made” (LPDT at [10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)). As a matter of principle, it is difficult to see how the construction for which the Applicant contends fits within the orthodox approach to judicial review. That approach is underscored by the comments of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; 289 FCR 164 in which Beach, Thawley and Cheeseman JJ said (at [28]):

The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision.

This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 118:

“In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made”

58    Such an approach was adopted by Steward J in considering a similar argument to the one advanced by the Applicant in this case in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 118. The Applicant in this case argues that while that case was correctly decided, it was in a different statutory context (namely the requirement in s 501(3A)(b) that a person “is serving” a sentence of imprisonment on a full-time basis). I accept that the factual and statutory circumstances in that case differed from the present case. However, it is another example of a Court accepting that the proper time for the analysis of the validity of a decision is the time that it was made.

59    The Applicant also sought to rely upon Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 (Shi). In that case, the “temporal element” of a statutory provision was relevant in determining what evidence should be taken into account by the Administrative Appeals Tribunal on merits review (that is, in determining whether a decision is the correct or preferable decision). In circumstances where the Court’s task on judicial review is limited to determining the legality of the decision, the existence of a “temporal element” in the sense described in Shi does not assist.

60    A further example which is on all fours with the present case is BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24 (BJT21). The Applicant accepts that in that case the argument which is being put forward in this case was considered and rejected and that I must be persuaded that it was plainly wrong to depart from it. In that case, Rangiah J said (at [71]-[75]) that:

The language and context of s 501(3A) does not indicate that a decision by the Minister under s 501(3A) may be retrospectively vitiated by subsequent events. The Minister’s obligation is to cancel a visa upon satisfaction that the holder: does not pass the character test because of s 501(6)(a) taken with s 501(7)(c) (substantial criminal record), or s 501(6)(e) (sexually based offences involving a child); and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a relevant law. When that state of satisfaction is lawfully reached, the Minister’s obligation to cancel the visa is absolute.

The legislative scheme recognises, in s 501(10), that an appeal or a pardon may affect the basis of a cancellation decision under s 501(3A), but does not require the Minister to await the determination of any appeal or any application for a pardon. The purpose of s 501(3A) creates an imperative of timing since the Minister must act while the person is still serving a sentence of imprisonment on a full-time basis in a custodial institution: cf. Parker at [59]. The broad purpose of the provision is protection of the Australian community against harm from criminal acts. The provision recognises a risk that persons who have committed criminal offences in Australia serious enough to attract a term of imprisonment of at least 12 months, or sexual offences involving a child, may offend again if released into the Australian community. In XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619, Burley J observed at [69] that a legislative purpose of s 501(3A) is, “to establish a scheme whereby a person in custody who does not pass the character test will not be released from detention until that person is removed from Australia or their immigration status is otherwise resolved”. Accordingly, the Minister is not required to await the outcome of any appeal or application for a pardon before cancelling a visa under s 501(3A).

…

The construction of s 501(3A) contended for by the applicant is that a decision to cancel a visa under that provision is invalid if an appeal process results in the reduction of a sentence to below 12 months’ imprisonment. However, such a construction is not warranted by the potential harshness of the consequences of a contrary construction. The clear language of ss 501(3A) and 501CA(4) and their purpose (preventing release of the person into the Australian community unless and until the cancellation decision is revoked) allow no room for that construction.

61    I cannot conclude that BJT21 was incorrectly decided. Indeed, as I have sought to demonstrate above, I respectfully agree with his Honour’s analysis in that case.

62    It follows that the existence of a term of imprisonment of 12 months or more under s 501(3A)(a) is neither an objective statutory criterion nor a criterion with no temporal element. It follows that the Applicant’s construction cannot be accepted and the application must fail.

Third step: The Second Non-Revocation Decision

63    The Applicant’s arguments in relation to the Second Non-Revocation Decision are entirely dependent upon the notion that the Second Cancellation Decision was invalid. For the reasons I have explained in relation to the second step, I do not accept that to be the case. It follows that the Second Non-Revocation Decision was not infected by jurisdictional error in the manner contended for by the Applicant.

Fourth step: Materiality

64    It would be necessary to consider materiality only if an error were established that was otherwise said to be non-material. For the reasons that I have set out above, I do not accept that there was any such error. It is therefore not necessary to consider the fourth step.

Conclusion

65    The only ground relied upon by the Applicant has not been successful. It follows that the application will be dismissed. Subject to the Court’s consideration of any contrary submission, the Applicant will be ordered to pay the costs of the Respondents as taxed in default of agreement.

Associate:

Dated:    5 June 2026