Federal Court of Australia

AFF20 v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCA 717

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to file and serve a further amended originating application in the form previously provided to the chambers of Beach J.

2.    The proceeding be dismissed.

3.    The applicant pay the respondent’s costs of and incidental to the proceeding.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicant has sought judicial review of a decision made by the relevant Minister pursuant to s 501(3) of the Migration Act 1958 (Cth) to cancel the applicant’s class AH subclass 101 visa.

2    The applicant has raised two grounds of review being, first, a constructive failure to exercise jurisdiction by failing to consider the most recent material relating to the applicant and, second, jurisdictional error by making unwarranted assumptions in respect of the applicant’s association with outlawed motorcycle criminal gangs (OMCGs). The first ground lacks merit. During the hearing some encouragement was given to the applicant’s counsel to reconsider his position on that aspect. The second ground was formulated after the hearing in subsequent written material. It raises the problem of induction presented in the migration domain and has required me to reflect on a trilogy of cases decided by Horan J, Bennett J and Hill J. But some transposition of their Honours’ discussion is necessary given that they were considering an exercise by the relevant Minister of a s 501BA(2) power which proceeded on the original decision being favourable to the visa applicant, viz, the revocation of a decision to cancel a visa. But that foundation is not the s 501(3) context. The relevance of the difference in perspective should become readily apparent later when I discuss their Honours’ reasons.

3    But at all events and for the following reasons, the applicant’s application for judicial review must be dismissed.

Background

4    The applicant is a citizen of Afghanistan who arrived in Australia in 2005 at the age of 14. He has a significant criminal history, the details of which do not need to be discussed.

5    Following a 2008 conviction, a delegate of the relevant Minister made a decision not to cancel the applicant’s visa under s 501 but instead issued a formal warning. The applicant nevertheless continued to offend. On 24 November 2015, the relevant Minister personally cancelled the applicant’s visa under s 501(2). Then in 2017, the applicant lodged an application for a protection visa, but this was refused by a delegate on 2 October 2018. However, the then Administrative Appeals Tribunal set aside the refusal and remitted the matter. On 11 December 2019, this Court made consent orders quashing the cancellation decision made on 24 November 2015. But on that same day, the relevant Minister made a personal decision to cancel the applicant’s visa under s 501(3). On 14 January 2020 a delegate of the relevant Minister dealt with the protection visa application remitted by the then Tribunal, but refused to grant the protection visa. Just jumping forward a moment, I note that on 15 December 2023 that decision was affirmed on review by the then Tribunal. Returning to the earlier time-line, on 28 May 2020 this Court made consent orders quashing the cancellation decision made on 11 December 2019. On that same day, the relevant Minister made a personal decision to cancel the applicant’s visa under s 501(3). On 29 July 2021, this Court dismissed the applicant’s application for judicial review in relation to the cancellation decision made on 28 May 2020. But notwithstanding this dismissal and in circumstances that I do not need to detail, on 11 October 2024 this latest cancellation decision was determined to be affected by jurisdictional error and treated as not being valid such that the applicant’s visa, being still the class AH subclass 101 visa, was treated as still being on foot.

6    On 10 April 2025, the Minister personally made the decision presently under review before me to cancel the applicant’s visa under s 501(3).

7    The applicant commenced the present proceedings by originating application but has since filed an amended originating application and a yet further amended originating application that I will give the applicant leave to file and serve.

The earlier amended ground of review

8    By the amended ground of review that was before me at the start of the hearing, the applicant alleged that in making the present cancellation decision, the Minister did not have regard to the most recent material in respect of the issues which were relevant to the exercise of the Minister’s discretion under s 501(3).

9    To be more precise, the applicant’s ground of review at the start of the hearing before me was that the Minister:

constructively failed to exercise his jurisdiction in respect of whether it was in the national interest to cancel the [a]pplicant’s visa under s501(3) of the Migration Act 1958 … by failing to consider the most recent material relating to the applicant.

10    It was said that the present cancellation decision was informed by a covering brief as well as attachments, which attachments included a decision of the then Tribunal on 15 December 2023 in respect of the applicant’s application for a protection visa; as I have indicated, the decision to refuse the protection visa was affirmed by the Tribunal.

11    But the cancellation materials before the Minister did not include the material that the applicant had filed in the Tribunal in respect of his application which resulted in the 15 December 2023 Tribunal decision.

12    First, there was before the Tribunal a statutory declaration from the applicant’s father dated 18 September 2023. But there were no statements of any date from the applicant’s father in the cancellation materials before the Minister.

13    Second, there were reports by the applicant’s psychologist before the Tribunal. But there were no psychologist reports or equivalents in the cancellation materials before the Minister, although the Minister’s decision referred to such reports referenced in the 2023 Tribunal decision.

14    Third, there was a statutory declaration from the applicant’s mother dated 16 September 2023 before the Tribunal. But there were no statements of any date from the applicant’s mother in the cancellation materials before the Minister; the applicant made specific reference to [30] to [33], [60] and [61] of the applicant’s mother’s declaration.

15    Fourth, there was a statutory declaration from the applicant’s sister dated 16 September 2023 before the Tribunal. But there were no statements of any date from the applicant’s sister in the cancellation materials before the Minister; the applicant made specific reference to [7] and [8] of the applicant’s sister’s declaration.

16    Fifth, there was a statement of the applicant dated 9 September 2023 before the Tribunal. But the most recent statement from the applicant in the cancellation materials before the Minister was from 2 July 2019.

17    Now the Minister accepted that the applicant had family ties to Australia, but the Minister found that those ties did not outweigh protecting Australia from potentially harmful conduct by the applicant. The applicant said that the material not before the Minister was relevant to such ties and their strength. It was said that the fact that the Tribunal had made findings based on the evidence before it did not relieve the Minister of his statutory duty to consider whether it was in the national interest at the time of his decision-making to cancel the visa, by having regard directly to the material put before the Tribunal as opposed to just considering the Tribunal’s consideration of aspects of that material.

18    It was said that a failure to consider recent material in the possession or in the constructive possession of the Minister constituted a constructive failure to carry out the statutory task in s 501(3)(d).

19    The applicant said that having the actual words of the applicant’s family members in the form of the statements before the Tribunal may have affected the Minister’s consideration of the relevant issues including the effect of cancellation on the applicant and the applicant’s family members, the character of the applicant and the reasons behind his conduct.

20    It was said that the fact that some of these matters may have been considered in the cancellation decision with reference to other material before the Minister was not to the point. It was said that reading the statements of the applicant’s family members was a matter which could have affected how the Minister treated the various considerations in the cancellation decision.

Analysis

21    Sections 501(1) to (4) and (5) provide:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

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

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

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

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

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

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

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

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

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

(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.

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

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

…

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

…

22    In summary, s 501(3) relevantly provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in the national interest. The power may only be exercised personally (s 501(4)) and the rules of natural justice do not apply (s 501(5)). Further, it is not in doubt that by conferring a power referable to the Minister’s personal opinion of the national interest, s 501(3) involves a power of some breadth and political dimension.

23    Now as I have indicated, the applicant said that the material not before the Minister was clearly relevant to the strength of the applicant’s family ties to Australia and that the Minister’s decision could have been different had he had before him the actual words of the applicant’s family members in the form of their statements.

24    Now this ground of review suffers from various difficulties. Most significantly, there is no requirement for the Minister to have regard to the most up to date material that may be in the possession of his department when exercising personal national interest powers under the Act, including s 501(3). The various national interest powers under the Act including s 501(3) do not require the decision-maker to have regard to the most up to date information that might bear on the applicant’s circumstances, yet the applicant’s case depends on the contrary position.

25    In Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758, the applicant argued that the Minister in making a decision under s 501(3) had erred by failing to have regard to the most up to date material at the time of the decision to cancel his visa, which included an unsolicited submission from the applicant. But Bromberg J observed (at [57]):

In my view, the decisive issue here is whether there was any obligation upon the Minister to take into account the most up to date information available to him in the context of s 501(5) providing that the rules of natural justice do not apply. As the Minister contended, s 501(5) contemplates that the Minister may form the satisfaction required by s 501(3)(d) — that the cancellation of the visa is in the national interest — without ascertaining what, if anything, the affected person has to say about that topic. There is therefore no room to imply from “the subject matter, scope and purpose” (Peko-Wallsend at 45) of the Act, that the Minister’s decision must be made on the basis of material provided by the affected person being taken into account at all, let alone that the most recent of material so provided must be taken into account.

26    The Full Court affirmed Bromberg J’s judgment, although the appellant did not on appeal pursue the specific ground (Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 657). The Full Court dismissed a related ground (see at [35]).

27    In EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 492, which also concerned a decision under s 501(3), the Full Court rejected the appellant’s submission that there was an obligation on the part of the Minister to consider the unsolicited material that was received. It was said by Abraham, O’Sullivan and Raper JJ (at [37], [44] and [64]):

That being so, as the Minister submitted, s 501(5) contemplates or envisages that the power under s 501(3) may be exercised where the Minister has less than a full picture because the person who is in a position to most directly inform the Minister of relevant factual information about the circumstances in which the power is to be exercised is not required to be given an opportunity to be heard. It follows, as a matter of logic, that s 501(5) contemplates or envisages that the Minister may proceed on the basis of information which is not up to date. That is not to suggest that the Minister does not have the power to obtain further information before exercising the power: Chamoun at [79].

…

Against this background, we do not accept the appellant’s submission that there was an obligation on the part of the Minister to consider the unsolicited material that was received. The power under s 501(3) is clear. As the Minister submitted, it is a broad power where the principal constraint, as identified in Carrascalao at [56], is a Parliamentary one, as set out in ss 501(3) and (4) of the Migration Act. Subsections 501(3) to (5) contemplate that a decision will be made with less than the full picture, including “on the basis of stale information”. It was ultimately the purview of Parliament to exercise any constraint on that power if necessary.

…

The appellant's submission that the Minister’s Decision being made on the basis of material which was stale by a period of 10 months (which in our view is not a lengthy period) does not lead one into the bounds of unreasonableness given the statutory scheme. As explained above, the statutory scheme contemplates that a decision may be made on the basis of a less than complete picture. The question is not whether it would have been preferable for the Minister to have considered the new material. A court “should not interfere with an administrator’s exercise of a discretion just because the court would have exercised the discretion in a different way”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [86].

28    Further, the principle that the Minister is not obliged to have regard to the most up to date material in his department’s possession is not confined to unsolicited submissions. In Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156, the Full Court rejected the appellant’s contention that by overlooking information which the Minister had in fact solicited, the Minister had failed to consider relevant information in making a decision under s 501BA or had otherwise acted unreasonably. As Derrington and Hespe JJ observed, “[n]o error can arise from the Minister ignoring any material received in the absence of any obligation to consider it” (at [123]).

29    Further, in Vargas v Minister for Home Affairs (2021) 286 FCR 387, the Minister made a decision under s 501BA(2) to cancel the appellant’s visa, having considered the Tribunal’s decision which was proposed to be set aside, but not having considered various documents before the Tribunal, but of which, having been a party to those earlier proceedings, the Minister was in constructive possession. The appellant argued that the material was required to be taken into account as a mandatory relevant consideration. But having noted the need to distinguish between the exercise of the national interest power under s 501BA and the different power being exercised by the Tribunal, McKerracher, Markovic and SC Derrington JJ said (at [62]):

Consequently, failing to consider material that was before the Tribunal during the revocation process (which at best was a permissive factor that bore upon the Minister’s state of satisfaction under s 501BA(2)(b)) could not, without more, go to jurisdiction.

30    Further, in Younes v Minister for Immigration and Multicultural Affairs [2025] FCA 236, Shariff J held (at [42]) that in exercising the national interest power under s 501BA, “[t]he Minister was not obliged to afford the applicant with procedural fairness and, accordingly, was not required to obtain up to date information from the applicant”.

31    Now the applicant sought to rely on Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, but it is not directly analogous. In MZYTS the Tribunal had based its decision to refuse a protection visa on outdated country information. The more recent country information which was provided by the applicant showed that the group which the applicant claimed to be a member of faced a greater degree of risk than previously described by the outdated country information. In finding jurisdictional error, Kenny, Griffiths and Mortimer JJ described the error as a failure to perform the statutory task imposed on the Tribunal. The reasoning was as follows (at [62]):

As we have set out above, the visa applicant’s claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant’s claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review.

32    Now in that case, the Tribunal was tasked on review under what was then Part 7 of the Act with the question of whether the applicant’s visa should be granted. But as the Full Court observed (at [38]):

That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.

33    But having regard to the authorities that I have referred to earlier, no such similar obligation applied here in exercising the s 501(3) power. There was no obligation to consider the most recent material relating to the applicant.

34    Moreover and in any event, it is apparent from cases such as Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1, albeit dealing with s 501CA(4), that there is considerable flexibility as to what precise material the Minister must have before him and in fact personally read in detail (see at [3], [4], [27], [28] and [33]) when exercising a power such as the s 501(3) power.

35    Finally on this ground, I should note that the applicant’s further amended originating application sought to abandon this ground. No doubt the applicant’s counsel was influenced to do so by my lack of enthusiasm for the merits of this ground expressed during the course of the hearing. But in fairness to the applicant I have reviewed this ground in my reasons if only to confirm that counsel’s current stance, albeit belatedly reached, displayed sound judgment. Let me turn then to the new ground.

The new ground of review

36    I have granted the applicant leave to raise a new ground of review, which is in the following form:

By relying on information dated 30 May 2014, 13 March 2015, 21 February 2016 and 2019 in respect of the applicant’s OMCG associations, the Minister committed the error in CPDL [2026] FCA 342 by making an unwarranted assumption in respect of the applicant’s OMCG associations.

Particulars

a.    The Minister’s reasons for cancelling the applicant’s visa relied heavily on the applicant’s OMCG associations: [37] – [52], [124] – [126] of the decision.

b.    At paragraphs [43] – [50] of the decision, the Minister relied on information from 2014 – 2019 in respect of the applicant’s OMCG associations.

c.    The Minister’s decision was made in April 2025.

d.    By relying on stale information, the Minister made an unwarranted assumption [in] respect of the applicant continuing to associate with OMCGs.

37    As is apparent, this new ground prayed in aid Hill J’s decision in CPDL v Minister for Immigration and Citizenship [2026] FCA 342, which involved a scenario where the Minister exercised his personal power under s 501BA of the Act to set aside a 25 month old decision of the Tribunal, which had revoked a visa cancellation. In doing so, the Minister gave various reasons including the risk of the applicant reverting to abusing alcohol in the community, as summarised by Hill J at [53]. The broad question was whether there had been jurisdictional error in the Minister relying on out of date information.

38    Hill J said (at [61] and [62]):

… [R]elying on out of date information when making a s 501BA decision may amount to jurisdictional error in two circumstances.

Cannot make unwarranted assumptions about current circumstances: First, jurisdictional error can arise if the Minister makes unwarranted assumptions about the circumstances at the time of the s 501BA decision, based on evidence at the time of the Tribunal’s decision. …

39    As to the other and broader circumstance, Hill J reflected upon this in the following terms (at [66]):

Use of out of date information is subject to legal reasonableness: Second, and more broadly, the ability to take into account stale information under s 501BA is subject to an overriding requirement of legal reasonableness. The reasoning in Luong indicates that there will be a point at which information is so out of date that it can no longer support a rational decision under s 501BA. The Full Court stated:

(a)    The power in s 501BA must be exercised reasonably. However, because s 501BA(3) of the Act expressly excludes the rules of natural justice, legal unreasonableness cannot be invoked as a ground of review in a manner that seeks indirectly to confer an entitlement to procedural fairness: Luong at [41].

(b)    Section 501BA contemplates that the Minister may decide to cancel a non-citizen’s visa without up to date information where the Minister elects not to afford natural justice to the non-citizen: Luong at [47].

(c)    However, legal unreasonableness “may arise where there is adverse reliance by the Minister on out of date information on a matter as a proper basis for cancelling a non-citizen’s visa without giving the non-citizen an opportunity to provide up to date information on that matter”: Luong at [48]. GRCF and Ba could be seen, in substance, as examples of this principle: Luong at [104]. That is, the more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness: GRCF at [41], quoting LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 at [48] (Charlesworth J).

40    The second circumstance identified by Hill J is not relied upon by the applicant in the present case. As is apparent from the formulation of the new ground of review and the applicant’s further written submissions post-hearing, the applicant eschewed reliance on the second circumstance discussed by Hill J.

41    Ultimately, Hill J found (at [78]):

However, the Minister’s statements set out above do not acknowledge that, by the time of the Minister’s decision, the Applicant’s ability to abstain from alcohol had been tested in the community for 25 months. (The Minister recognised elsewhere that the Applicant had been in the community since April 2022.) This is not to say that the Minister was obliged to find that the Applicant’s alcohol issues were resolved, but 25 months is a sufficiently long period that it could not be ignored altogether: cf EUD24 at [49]. The particular issue here – whether the Applicant could abstain from alcohol in the community – was both highly important, and an issue where the position could potentially change significantly over the course of 25 months, such that 25 months provides a meaningful data point for a decision. The issue was inherently variable (albeit not transient): cf XPLW at [72]. (There may be other issues relevant to an assessment of risk that could be expected to remain the same over that period.) Accordingly, this was a matter that required some explanation, but there was none.

42    In the present case, the applicant says that the Minister’s reasons for decision in exercising his power under s 501(3) revealed that an unwarranted assumption was made in respect of the applicant’s association or risk of association with OMCGs.

43    It was said that the applicant’s OMCG associations were a central aspect of the reasons for cancelling the applicant’s visa (at [37] to [52]). It was said that the Minister’s decision which was made in April 2025 relied on evidence dated 30 May 2014 (at [43]), 13 March 2015 (at [45]), 21 February 2016 (at [47]) and 2019 (at [50] and [51]). As to the 2019 material, it was said (at [50] and [51]):

In a letter to the Department dated 2 July 2019, [the applicant] ‘categorically’ denies both leading the Afghani Murderers and having membership of an OMCG. [The applicant] says he was previously a mentally ill drug addict and, because of this, he was welcomed by drug dealers and members of biker gangs. [The applicant] says he did ‘....their dirty work in return for drugs’. [The applicant] also states, ‘I might have associated with bikies but it was solely for purpose of getting drugs’.

[The applicant] has acknowledged telling fellow inmates that he was part of a gang, however this was done for his own protection and in response to bullying from other inmates. [The applicant’s] claim appears incongruent with the information contained in a 2019 Client Incident Report, which states that he was involved in a physical altercation with another detainee, and that both detainees are known to be members of the Brothers For Life gang.

44    The applicant says that a fair reading of [51] of the decision is that the Minister was casting doubts on the denials of the applicant in respect of his OMCG association.

45    Further, the applicant pointed out that in his conclusions, the Minister said (at [124] to [126]):

I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion and/or continue to engage in other serious conduct by his association with the aforementioned OMCGs and criminal organisations. I could not rule out the possibility of further criminal conduct by [the applicant]. The Australian community should not tolerate any risk of further harm.

Noting that [the applicant] has lived in Australia for a significant period of his life, I have taken into account that Australia may afford a higher level of tolerance of criminal or other serious conduct by him than it otherwise would. However, I am also cognisant that where great harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient to justify not cancelling the visa, whether or not [the applicant] poses a measureable risk of causing physical harm.

In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens. I am of the view that the Australian community generally would not expect non-citizens who illegally possess firearms and associate with various OMCGs and criminal organisations to continue to hold a visa, especially where the non-citizen continues to pose a significant risk to the Australian community.

46    Read as a whole, the applicant says that it is fair to infer that the Minister was not persuaded that the applicant no longer had OMCG associations, thought that it was possible that the applicant would continue to have OMCG associations, and gave these matters great weight in deciding to cancel the applicant’s visa.

47    But the applicant says that the problem is that the most recent evidence taken into account in respect of the OMCG associations was 6 years old at the time of the making of the Minister’s decision. And the applicant says that the fact that the applicant may have had no OMCG associations in that 6 year period was a “meaningful data point” which was “inherently variable”, adopting the vernacular of Hill J in CPDL at [78].

48    So, the applicant says that this meant that an unwarranted assumption was made in respect of the applicant’s OMCG associations. Accordingly, the applicant says that the type of error in CPDL is made out here and is relevantly material. I will put to one side for the moment the proper characterisation of an unwarranted assumption type error.

Analysis

49    Now as I have indicated, the applicant’s new ground does not advance any complaint associated with the second circumstance discussed by Hill J at [66] concerning the unreasonable use of out-of-date information. Let me deal with the first circumstance concerning the making of an unwarranted assumption.

50    It may be noted at the outset that the occasion for examining the unwarranted assumption kind of error has so far arisen in the s 501BA(2) decision-making context, where a condition of the Minister’s power is that, relevantly, the Tribunal has made a decision (the “original decision” (s 501BA(1))) favourable to the applicant but the object and function of the s 501BA(2) power is to set aside that decision and to cancel the applicant’s visa. In addition to CPDL, see also for example GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [37] to [61] per Bennett J and Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 at [32] to [56] per Wheatley J. Usually in such s 501BA(2) cases, the so-called original decision is the latest source of evidence on particular topics which the Minister may consider relevant, and the subject of some discussion in the Minister’s reasons. So, depending on the passage of time since the Tribunal’s “original decision” and the particular way in which the Minister has relied on matters from the Tribunal decision, those cases more readily lend themselves to the possibility of the type of error identified by Hill J.

51    But where as in the present context under s 501(3) the Minister refers in his reasons to various different materials spanning 2014 to 2019, it is less likely that a Minister would assume without more that such information, discussed incidentally in the course of the decision, represented a continuing state of affairs, as one might with material in an “original decision” the subject of a review under s 501BA(2).

52    Now the unwarranted assumption kind of error is really an assertion that particular aspects of the Minister’s findings are unreasonable, irrational or illogical. As such, such grounds are inherently fact sensitive. Necessarily, such grounds involve some precise identification of the express or implicit finding of the Minister, and identification of why such a finding was not reasonably or logically supported by the evidence.

53    Further, it must be borne in mind that by reason of the exclusion of the rules of natural justice, the decision-making power contemplates that a valid decision “may be made with less than the full picture, including on the basis of stale information” (CPDL at [59]). Moreover, there may well be a reasonable basis in certain circumstances to draw an inference about a continuing state of affairs from out of date evidence.

54    So in GRCF, Bennett J distinguished between the findings which were unreasonable and those which were not. Her Honour ultimately held that the Minister’s rehabilitation findings (at [49] and [50]) “stepped outside the bounds of logical reasoning and proceeded without evidence to reach an impermissible conclusion about the current status of GRCF’s rehabilitation and his current attitude towards rehabilitation at the time of the decision” (GRCF at [54]). But contrastingly, her Honour considered (at [55] to [57]) that findings concerning the relationship between GRCF and the children of GRCF’s brother and sister, and the lack of GRCF’s regular contact with them, were capable of being inferred from the information before the Minister and notwithstanding the passage of time. So, as her Honour said, there was no impermissible extrapolation.

55    More generally, whether it is open to infer a present state of affairs from out of date information may also depend on whether the subject matter is “inherently transient or variable in nature”, as Horan J discussed in XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210 at [72]:

Accordingly, this is a case in which the Minister based his decision on specific findings of current facts, relying only on evidence of facts and circumstances that existed over two years before the Minister’s decision. The matters to which that evidence was directed were inherently transient or variable in nature. The circumstances of the applicant’s sister and her daughter and their support needs were likely to have changed. … There might also have been material changes in the circumstances of his elderly parents … . The applicant’s mental health condition might have changed significantly since his release from detention, which might conceivably affect the nature and extent of any ongoing needs for treatment.

56    See also Hill J’s discussion in CPDL at [78] which I have already set out.

57    Let me say something about the Minister’s reasons.

58    As senior counsel for the Minister pointed out, the Minister considered that the protection of the community was relevant ([13] and [14]) and, as an aspect of that consideration, considered the applicant’s previous criminal conduct ([15] to [35]) and other serious conduct of the applicant ([37] to [52]).

59    Further, in the discussion of this other serious conduct of the applicant, the Minister’s reasons repeatedly use the preterite tense; the Minister’s counsel also countenanced the use by the Minister of the present perfect tense but in my view this was a problematic characterisation on one view of what is meant by such a tense. So, for example, the discussion proceeds (at [41] to [46] and [52]):

Information obtained by the Department demonstrates [the applicant] has associated with numerous OMCGs and criminal groups, such as; the Hells Angels, Notorious, Brothers For Life and the Afghani Murderers … .

[The applicant] himself has also corroborated the finding that he has associated with OMCG members, … .

On 30 May 2014, the Court noted [the applicant] introduced his friend (referred to as ‘Hashemi’) to numerous members, and a prospective member, of the Hells Angels Chinatown Chapter. I note … that [the applicant] ultimately received a ‘qualified finding of guilt’. However, this specific Court outcome is not relevant here … . Rather, my attention is drawn to the aforementioned fact that [the applicant] was associating with OMCG members.

Other information provided by the New South Wales (NSW) Department of Corrective Services also states [the applicant] was a member of Notorious, which is described as an organised criminal network.

A NSW Police Facts Sheet, dated 13 March 2015, states that their Middle Eastern Organised Crime Squad (MEOCS) investigated an organised criminal network whose members refer to themselves as the ‘Afghani Murderers’ and the ‘Afghani Mafia Family’. MEOCS investigations confirmed [the applicant] was a ‘core member’ of this criminal network.

The Federal Court of Australia has noted that ‘[i]t is common ground that he [the applicant] has been associated with several outlaw motorcycle gangs’.

…

Conclusion

I find that [the applicant] has engaged in other serious conduct through his association with members of the Hells Angels OMCG, the Brothers For Life and the Afghani Murderers/Afghani Mafia Family. I also find [the applicant’s] conduct through his OMCG membership to be very serious when also considering the significant harm caused to the community by the Hells Angels and other OMCGs.

60    And as the Minister points out, later reasoning touching on the subject matter was also expressed in that way. So it was said (at [67] and [76]):

As mentioned earlier, [the applicant] was also involved in a physical altercation with another detainee, who was also a member of the Brothers For Life gang.

…

The relevant adverse conduct [the applicant] has engaged in includes; associating with members of the Hells Angels OMCG, the Brothers For Life and the Afghani Murderers/Afghani Mafia Family and possessing a prohibited firearm (despite the Court previously implementing an order preventing him from doing so). … Noting [the applicant] has engaged in this violence-promoting conduct, specifically his associating with criminal groups known to be engaged in violence and possessing weapons that can be used for inflicting harm - actions that only serve to make the Australian community less safe, I find he raise[s] serious character concerns … .

61    Further, the Minister’s expression of scepticism about the applicant’s denial in 2019 of OMCG membership (at [51]) is not an implicit finding of current membership some six years later.

62    Moreover, in the concluding part of the Minister’s reasons it was said (at [122]):

I have given very significant weight to the risk posed to the Australian community by [the applicant’s] continued presence in Australia, taking into consideration his past criminal conduct and his previous association with numerous OMCGs and criminal organisations, including the Hells Angels OMCG, Notorious, Brothers For Life and the Afghani Murderers/the Afghani Mafia Family, as well as the risk of further comparable conduct in future.

63    I agree with the Minister that it would be a little odd for the Minister to expressly identify the applicant’s previous association with OMCGs at [122] as the relevant matter which he had taken into account, but in reality he had also made an unexpressed and inconsistent finding that he had in fact taken into account some current and subsisting association.

64    Now in my view relevant past serious conduct in the form of previous association with OMCGs was capable of being relevant to the protection of the community insofar as there was a risk that the applicant might resume such associations. So it was open to the Minister to conclude at [124] that the “Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion and/or continue to engage in other serious conduct by his association with the aforementioned OMCGs and criminal organisations”. I agree with the submissions of senior counsel that the Minister’s reasons here should be understood as revealing an appreciation of the applicant’s past association with OMCGs and other criminal organisations and a concern that there was an elevated risk to the community should the applicant resume an association with such groups.

65    The Minister’s reasons at [124] are to be fairly read as a finding of contingent risk should the applicant associate once more with OMCGs. That is consistent with the passage at [122], which expressly notes the applicant’s “previous association” as the relevant matter taken into account (at [124]). And as to [125], there is no mention here of the applicant’s association with OMCGs.

66    Finally, as to [126], there is nothing in [126] which implies, contrary to the express reasoning in [122], that the Minister took into account the applicant’s present OMCG associations. Further, the passage relevantly reads “the Australian community generally would not expect non-citizens who illegally possess firearms and associate with various OMCGs and criminal organisations to continue to hold a visa” ([126]). As the Minister points out, it is not suggested by the applicant that the passage also implies that the applicant currently illegally possesses a firearm. In context, the passage is referring to the Minister’s findings of past criminal conduct and other serious conduct.

67    In summary then, the Minister’s reasons were not making any assumption about current associations. Rather, the Minister was drawing an available inference about future risk given the nature of the past associations. Given the applicant’s substantial history of association with OMCGs, in my view it was open to the Minister to view as a risk the possible prospect of resumption.

68    In my view, there was no impermissible extrapolation by the Minister such that he was making a finding or drawing an inference concerning any current association by the applicant with OMCGs. Rather, on the basis of evidence about past associations, he formed the view that the prospect of resumption of any such association was a risk. Of course, it may be said that the Minister has proceeded on the basis of incomplete information. But in the circumstances that is neither remarkable nor problematic, let alone such as to give rise to jurisdictional error. No illogicality or irrationality or evidentiary gap unbridgeable by a reasonable inference concerning future risk has been demonstrated in the Minister’s chain of reasoning. Moreover, if it needs to be said directly, the Minister has not proceeded in any way that could amount to legal unreasonableness.

Conclusion

69    For the foregoing reasons, the applicant’s application for judicial review must be dismissed.

Associate:

Dated:    9 April 2026