Federal Court of Australia

Wachipa v Minister for Immigration and Citizenship [2026] FCA 806

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 24 September 2024 is set aside.

2.    The respondent must pay the applicant’s costs of and incidental to the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Wachipa, is a citizen of Zimbabwe. He has been in Australia since 2009, when he was 14 years old.

2    On 17 May 2021, Mr Wachipa was convicted of aggravated home burglary with intent and one count of causing bodily harm with intent. He was sentenced to imprisonment for a total of 4 years and 6 months.

3    Mr Wachipa’s Class BW Subclass 856 Employer Nomination Scheme visa was cancelled, as was mandatory under s 501(3A) of the Migration Act 1958 (Cth), because he had been sentenced to a term of imprisonment of 12 months or more, and he was then serving that sentence of imprisonment full-time. He made representations to the respondent (Minister) as to why the cancellation of his visa should be revoked. A delegate of the Minister refused to revoke the cancellation, but on review the then Administrative Appeals Tribunal set that decision aside and substituted a decision to revoke the cancellation of the visa. The Tribunal’s decision was made on 7 August 2023 (Tribunal Decision), though it did not deliver its reasons until a month later.

4    By the time of the Tribunal Decision, Mr Wachipa was on parole, albeit in immigration detention, so the decision meant that he was released from detention. His parole expired on 24 May 2024.

5    On 24 September 2024, however, and without prior notice to Mr Wachipa, the Minister made a decision under s 501BA of the Act to cancel the visa (501BA Decision – that decision was made by an Assistant Minister, not the respondent, but nothing turns on that, and it will be convenient to refer to both offices and the individuals occupying them throughout as the Minister). Also on 24 September 2024, the Minister provided written Reasons for the decision. This was approximately 13½ months after the Tribunal Decision.

6    Section 501BA is set out in full below, but in short it provides that the Minister may set aside a Tribunal decision to revoke the mandatory cancellation of a visa under s 501(3A) if the Minister is satisfied that the visa holder does not pass the character test and is also ‘satisfied that the cancellation is in the national interest’: s 501BA(2).

7    Mr Wachipa seeks judicial review of the 501BA Decision. While his application is stated to be under s 476A of the Migration Act, that provision confines the original jurisdiction of this Court concerning constitutional writs as conferred by s 39B of the Judiciary Act 1903 (Cth), relevantly, to decisions under s 501BA: see s 476A(1)(c) of the Migration Act; HBMH v Commonwealth of Australia [2023] FCA 1527; (2023) 302 FCR 146 at [13]-[14] and [20]. I infer that the application is brought under s 39B(1) of the Judiciary Act, as a writ of prohibition is sought against the Minister, as well as certiorari to quash the decision made under s 501BA. In any event, to succeed, Mr Wachipa needs to establish jurisdictional error.

8    The application was heard on 19 May 2025. But as will be seen, a then pending Full Court decision, Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19; (2026) 315 FCR 207 (XMBQ FC), was likely to be relevant to the outcome. I therefore accepted a submission by the Minister that I should wait for it to be handed down before proceeding to judgment. XMBQ FC was handed down on 9 March 2026, and the parties were then given leave to make supplementary written submissions about the decision, which they did. The last set of submissions was received from the Minister on 5 May 2026, and on 13 May 2026 Mr Wachipa indicated that he did not intend to file reply submissions.

9    For the following reasons, the 501BA Decision will be set aside.

The grounds of review

10    Mr Wachipa’s grounds were refined during the course of the hearing, and he was given leave at that time to file and serve a further amended originating application. His grounds of review (as numbered in the application) can be summarised as follows:

(1)    The 501BA Decision was not made within a reasonable time after the Tribunal Decision when, on the proper construction of s 501BA, it was required to be made within a reasonable time.

(2)    The aspect of the 501BA Decision by which the Minister was satisfied that it would be in the national interest to cancel Mr Wachipa’s visa was legally unreasonable, irrational or illogical, for reasons that will be summarised further below.

(3)    The aspect of the s 501BA Decision by which the Minister, being satisfied that cancellation was in the national interest, decided to exercise his discretion to cancel the visa, was also legally unreasonable, irrational or illogical, for reasons that will also be summarised further below.

11    As to ground 2 and ground 3, three particulars are common to each:

(a)    the Minister made the 501BA Decision more than 13 months after the Tribunal Decision;

(b)    the Minister decided, without any intelligible reasoning, to not give Mr Wachipa the opportunity to be heard before making the 501BA Decision; and

(c)    the Minister failed to make any further enquiries or obtain any up-to-date information regarding any of the matters that the Minister considered were relevant to the national interest or to the exercise of discretion (as the case may be).

12    The commonality here is appropriate, as it became clear from submissions that each of ground 2 and ground 3 proceed on the basis that the lapse of time between the currency of the materials available to the Minister and the date of the 501BA Decision meant that the decision was unreasonable or illogical. Essentially, that is because it was based on out-of-date material.

13    Despite what might be thought on reading these particulars in isolation, Mr Wachipa does not criticise the Minister for deciding not to afford natural justice as such; as will be explained, it was clearly open to the Minister to proceed without notice to Mr Wachipa. Nor does Mr Wachipa suggest that the Minister had some free-standing duty of inquiry. These particulars are better understood as laying the groundwork for the distinct criticisms of the 501BA Decision that follow in each of ground 2 and ground 3.

14    The following further particulars support ground 2 – these all concern the Minister’s assessment of the risk of Mr Wachipa reoffending:

(a)    the Minister reasoned that Mr Wachipa’s ability to refrain from substance abuse had not been tested in circumstances where he was not either incarcerated or under supervision for any substantial period of time, when, to the Minister’s knowledge, Mr Wachipa had been living in the community for over 13 months and had completed his parole four months before the 501BA Decision;

(b)    the Minister failed to take into account the fact that Mr Wachipa had refrained from substance abuse and further offending since his release into the community;

(c)    the Minister ‘reasoned’ that the nature of the conduct that Mr Wachipa might repeat was ‘insert brief description of conduct’; and

(d)    the Minister found that Mr Wachipa posed a moderate risk of reoffending, when that finding was premised on the errors identified above.

15    There are two points here. The first is essentially that the Minister’s assessment of the risk of reoffending, depending as it did on an assessment about the risk of a relapse into drug use, did not take account of the time that Mr Wachipa had spent in the community after being released on parole. The second concerns a mistake in the Reasons for the 501BA Decision where a placeholder phrase was mistakenly left in the final Reasons. The mistake will be described further below.

16    Unique to ground 3 were the following particulars, concerning the exercise of the discretion that arose upon the Minister’s satisfaction that cancellation was in the national interest:

(a)    the Minister gave the protection of the Australian community greater weight than any other relevant matters, and in doing so made each of the errors under ground 2 identified in the paragraph immediately above;

(b)    in considering the best interests of minor children that could be affected by cancellation of Mr Wachipa’s visa, the Minister failed to consider the interests of Mr Wachipa’s son (who had been born while Mr Wachipa was living in the community after the Tribunal Decision);

(c)    in considering Mr Wachipa’s ties to Australia, the Minister failed to consider Mr Wachipa’s relationship with his fiancée and the mother of his son; and

(d)    the Minister had constructive knowledge of the applicant’s intention to start a family once released into the community.

17    In other words, the Minister is said to have impermissibly reasoned as if Mr Wachipa’s family circumstances, including as to any minor children who might be affected by his removal from Australia, were as at the date of the materials before him, rather than the date of the 501BA Decision. It will be observed that this is said to have resulted in a failure by the Minister to consider the interests of a son (who was born after the Tribunal Decision) and Mr Wachipa’s relationship with his fiancée. Mr Wachipa does not allege, however, that the Minister was aware of the existence of the son or the fiancée, actually or constructively.

18    While ground 2 and ground 3 distinguished between the step in the making of the 501BA Decision where the Minister had to be satisfied as to the national interest, and the step where he had to exercise the discretion, neither party made anything of that distinction in submissions. As will be seen, the distinction comes from the Reasons themselves. The focus of the parties’ submissions was on whether the lapse of time vitiated the Minister’s reasoning concerning Mr Wachipa’s drug use and consequent risk of reoffending, and any affected minor children and other family members; and the vitiating effect, if any, of the placeholder mistake.

Evidence

19    Mr Wachipa’s counsel read into evidence an affidavit that his client swore on 29 March 2025. The Minister objected to the relevance of the affidavit to the extent that it went to matters that might have been raised by Mr Wachipa had he been afforded natural justice, or had the Minister made further inquiries. I accept that matters of that kind have no relevance to the issues in this proceeding. I therefore rule that the affidavit is not admitted into evidence.

20    The Minister read into evidence an affidavit affirmed on 12 May 2025 by Penelle Stern, a Director in the National Character Consideration Centre (Revocation and Discretionary) section of the Character and Cancellation & Case Resolution Division of the Department of Home Affairs.

21    It is convenient now to describe relevant aspects of the Reasons, before considering the errors alleged against the Minister in turn.

The Minister’s Reasons

22    Section 501BA of the Migration Act as it stood at the time of the 501BA Decision and the Reasons was as follows:

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

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

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

Action by Minister—natural justice does not apply

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

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

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

(ii)    paragraph 501(6)(e); and

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

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

Minister’s exercise of power

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

Decision not reviewable by application under Part 5 or 7

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

23    After some preliminaries and an explanation of the nature of the statutory power, the Minister said that he had elected not to afford Mr Wachipa an opportunity to be heard in respect of the possible exercise of the power under s 501BA. It was common ground that the Minister is not subject to the requirements of natural justice in relation to the exercise of the power: see s 501BA(3). This has the result that a person ‘affected by the Minister’s decision is not entitled to notice of the exercise of power, to present evidence or submissions, or to be heard in relation to the matter’: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [41] (Derrington and Hespe JJ).

24    The Minister also said that he was satisfied that Mr Wachipa did not pass the character test, and that is not contentious in this proceeding either.

25    Similarly uncontentious is the direction that the Minister gave to himself that ‘the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction (provided that satisfaction is obtained reasonably)’: Reasons para 14. The Minister accordingly said that he considered that ‘matters of national interest include, amongst other things, the protection of the community and the expectations of the Australian community’: Reasons para 15.

26    In relation to the protection of the community, while the Minister was not required to follow the familiar framework of analysis found in the Ministerial directions to other decision makers, he largely followed that framework anyway.

27    The Minister considered the circumstances of the offences of aggravated home burglary with intent and causing bodily harm with intent. It is not necessary to recount all those circumstances; on any view, the offending was serious and violent. The purpose of the burglary was to obtain money and drugs from the premises. One of Mr Wachipa’s co-offenders was fatally wounded during the incident. The Minister found that it was very serious offending.

28    The Minister also noted that, on 29 January 2018, Mr Wachipa had been convicted of a number of offences, including stealing, possessing a prohibited drug, carrying an article with intent to cause fear, giving false details to police, and various driving offences including aggravated reckless driving pursuit. He was sentenced to imprisonment and fined for these offences. On 13 March 2020, he was convicted of driving on a cancelled licence. The Minister was aware of other offences for driving without authority or while suspended which, he considered, put road users at risk of harm. He found that, having regard to the cumulative impact of Mr Wachipa’s offending over time, his criminal history was very serious.

29    The Minister turned to consider the risk that Mr Wachipa would reoffend. That section of the Reasons commenced with the following paragraph:

26.     Having regard to Mr WACHIPA’S offending history, as outlined above, I consider that any future offending of a similar nature or seriousness would have the potential to cause serious physical and/or psychological injury and/or financial harm to members of the Australian community.

30    The Minister reviewed circumstances from Mr Wachipa’s past that contributed to his offending, including ‘his drug problems, which stemmed from several traumatic events during his childhood’: Reasons para 29. The Minister reviewed the factors that (before the Tribunal) Mr Wachipa had argued mitigated the risk of reoffending, including ‘that he has undertaken significant rehabilitation and has been drug-free during and since his most recent incarceration’ and that he had been attending weekly drug and alcohol counselling: Reasons para 31.

31    In reasoning that is now under challenge, the Minister then said:

33.     While Mr WACHIPA has clearly taken significant steps to rehabilitate himself, and has a strong degree of insight into his potential triggers for reoffending, I note that Mr WACHIPA has been suffering from a drug addiction since he was 17. He will need to be constantly vigilant as his risk of reoffending would, in my view, substantially increase if he were to take drugs again. I note that he was on parole until 24 May 2024, and his ability to refrain from substance abuse has not been tested in circumstances where he is not either incarcerated or under supervision for any substantial period of time.

34.     I also note that Mr WACHIPA has previously been incarcerated and resumed drug taking upon being released. In 2018, Mr WACHIPA started taking drugs again shortly after his release from prison. This causes me concern as to Mr WACHIPA’s ongoing ability to remain clean.

35.     Taking all of the above into account I agree with the Tribunal that Mr WACHIPA poses a moderate risk of reoffending.

Conclusion on risk to community

36.     The safety of the Australian community is the highest priority of the Australian Government, which is committed to protecting the community from harm resulting from criminal activity or other serious conduct by non-citizens.

37.     I have found that the nature of Mr WACHIPA’S conduct is very serious. I have further found that insert brief description of conduct has the potential to cause serious physical and/or psychological injury and/or financial harm to members of the Australian community, if repeated.

38.     On balance, I consider there to be a moderate, but not negligible likelihood that Mr WACHIPA will reoffend and note that should he engage in similar conduct again it would be likely to result in serious psychological and/or physical harm and/or financial harm to members of the community. I have given this consideration weight in support of cancellation being in the national interest.

32    The appearance of the phrase ‘insert brief description of conduct’ in paragraph 37 is one basis for Mr Wachipa’s application for judicial review. This is what I have called the placeholder mistake.

33    The Minister also considered the expectations of the Australian community: Reasons paras 39 to 42. His conclusion as to the national interest was:

44.     In the specific case of Mr WACHIPA, notwithstanding his substantial rehabilitation, I took into account the very serious nature of his offending conduct, the remaining risk that he will reoffend and the risk of significant harm to members of the Australian community if he reoffends in a similar manner.

34    The Minister therefore decided that the use of the power under s 501BA to cancel Mr Wachipa’s visa was in the national interest.

35    The Minister then turned to whether he should exercise the discretion to cancel the visa that was thus enlivened. In that section of the Reasons he considered a range of factors including, relevantly, the best interests of minor children and Mr Wachipa’s ties to Australia.

36    On the first of those subjects, the Minister said:

48.     In considering whether to cancel Mr WACHIPA’s visa, I was mindful of Article 3 of the United Nations Convention on the Rights of the Child, to which Australia is a signatory, and treated the best interests of any affected minor children in Australia as a significant consideration.

49.    Mr WACHIPA submits that the following minor children in Australia could be affected by a decision to cancel his visa:

-     his three minor siblings and minor nephew;

-     the minor children of the Applicant’s friend, who describes Mr WACHIPA as their uncle; and

-     the grandson of another friend, who is 9 years old.

In the latter paragraph the Minister was evidently referring to written submissions that Mr Wachipa had made to the Tribunal on 4 July 2023.

37    The Minister briefly considered the interests of those children, and found that they had significant weight against cancellation.

38    In terms of ties to Australia, the Minister considered the impact of cancellation on family members in Australia, including Mr Wachipa’s father, stepmother, brothers and sisters (including the minor children already mentioned) and cousins. The Minister found that they would experience emotional hardship if Mr Wachipa was unable to remain in Australia. Overall, the Minister found that Mr Wachipa’s ties to Australia weighed strongly against the cancellation of the visa.

39    It is not necessary to canvass any other parts of the Reasons, save to mention that in the conclusion, the Minister made it plain that he gave very significant weight, in favour of cancelling the visa, to his finding that (para 83):

the Australian community could be exposed to significant harm should Mr WACHIPA reoffend in a similar fashion. I could not rule out the possibility of further criminal conduct by Mr WACHIPA. The Australian community should not tolerate any risk of further harm.

Ground 1 – was the s 501BA power conditioned on exercise within a reasonable time?

40    XMBQ FC did indeed determine the outcome of ground 1. Mr Wachipa accepts that the ground is premised on a construction of s 501BA(2) of the Migration Act in which the power can only be exercised within a reasonable time of the event that enlivens it. Mr Wachipa also accepts that in XMBQ FC the Full Court held that this construction of s 501BA(2) is wrong. He formally submits that XMBQ FC was wrongly decided, but accepts that I am bound to follow it, so that I am bound not to uphold ground 1. That is all correct, so that ground 1 will not be upheld.

41    Mr Wachipa further accepts that if the construction adopted in XMBQ FC is adopted here, the effluxion of time alone cannot amount to legal unreasonableness. He submits, and I accept, that it can nevertheless be a factor that may inform a finding of legal unreasonableness in combination with other circumstances. Hence, XMBQ FC does not stand in the way of success on ground 2 or ground 3, which enlist the lapse of time as one only of a number of circumstances said to have made the 501BA Decision legally unreasonable.

42    Mr Wachipa goes on to submit, however, that since XMBQ FC is the subject of an application for special leave to appeal to the High Court of Australia, it is appropriate that I make findings of fact as to whether the 501BA Decision was made within a reasonable time.

43    That approach was taken in CPDL v Minister for Immigration and Citizenship [2026] FCA 342 at [90]-[92], a case that concerned the same issue. But in CPDL, the parties were agreed that it was appropriate for the first instance judge to make findings of fact on whether the Minister’s decision was made within a reasonable time in case XMBQ FC was appealed to the High Court. In this case the Minister opposes the making of any findings of fact. He says that not only has the unsuccessful respondent in XMBQ FC sought special leave to appeal to the High Court, so too has the unsuccessful appellant in a similar case, Archer v Minister for Immigration and Citizenship [2026] FCAFC 20.

44    The Minister says further that a basis of the application for special leave in Archer is that, if a temporal reasonableness limitation on the s 501BA power exists, whether it has been breached is to be determined by deciding whether the decision was made within a reasonable time, rather than whether there is a satisfactory explanation for any delay in the making of the decision. He submits that this means any assessment of unreasonableness will depend on the proper construction of the Migration Act, so that if the Full Court decisions in XMBQ FC and/or Archer are disturbed by the High Court, any factual findings concerning ground 1 will be incomplete and fail to achieve the efficiency contended for.

45    Mr Wachipa did not contest these assertions of fact in the Minister’s submissions, or otherwise reply, despite having the opportunity to do so.

46    I accept the Minister’s submissions. Mr Wachipa asks the Court to make findings of fact on a hypothetical understanding of the law, where the likelihood that XMBQ FC will be overturned, and the basis on which that might happen, are each unknown. His request is opposed. In those circumstances, it would be potentially inefficient to proceed to make findings of fact about the reasonableness of the timing of the 501BA Decision. And if XMBQ FC is overturned, so that my conclusion on ground 1 is overturned too, a Full Court will be in as good a position as I am to make the necessary findings. There is no forensic contest between the parties as to the basic facts which might be ill-suited for determination by a Full Court. The contest is, rather, at the level of evaluating the significance of primary facts that are readily established.

47    I do not uphold ground 1, and I make no findings of fact in relation to it.

Grounds 2 and 3 – whether the exercise of power was legally unreasonable

48    As has been said, the distinction in the Reasons between the state of satisfaction as to the national interest and the exercise of any resulting discretion is not significant for present purposes. It is convenient to deal with grounds 2 and 3 together.

The chronology of the 501BA Decision

49    It is worth recapping the essential chronology, as context for Mr Wachipa’s contentions that the Minister impermissibly acted on the basis of information that was or was likely to be out of date.

50    The material before the Minister was essentially comprised of the material before the Tribunal, and the reasons for the Tribunal Decision. To the extent that the Minister had regard to Mr Wachipa’s submissions to the Tribunal, they were dated 4 July 2023. The Tribunal held a hearing on 18 July 2023.

51    As has been said, the Tribunal’s decision to revoke the earlier cancellation of the visa was made on 7 August 2023. It delivered written reasons on 7 September 2023.

52    At the time Mr Wachipa was released from immigration detention on about 7 August 2023, he was still subject to parole. That was due to expire, and did expire, on 24 May 2024.

53    As has also been said, the Minister’s decision was made on 24 September 2024. Ms Stern’s affidavit indicates that the case was provided to the Minister for consideration about one week before that, so for all practical purposes the Minister can be taken to have been deliberating about the 501BA Decision at approximately the same time that it was made.

54    The 501BA Decision was made approximately 13½ months after the Tribunal made its decision, and Mr Wachipa became free to live in the community. The 501BA Decision was made about 14⅔ months after Mr Wachipa made his written submissions to the Tribunal and a little over 14 months after the hearing before the Tribunal. It was made four months after the expiry of Mr Wachipa’s parole, a date noted in the Reasons, and so a date of which the Minister can be taken to have been aware.

Principles

The limits of the power under s 501BA – legal unreasonableness

55    While the obligation to exercise the power in s 501BA in a legally reasonable way may require a decision maker to make an inquiry in an extreme case, there is no general duty on the Minister to make further inquiries: Candemir v Minister for Home Affairs [2019] FCAFC 33; (2019) 268 FCR 1 at [25]-[26] (Collier, Robertson and Thawley JJ) applying in particular Ozer v Minister for Home Affairs [2019] FCA 104 at [43]-[46] (Steward J).

56    The mere fact, therefore, that there has been a lapse of time between the Tribunal Decision (and the provision of the materials on which it is based) and the 501BA Decision will not, of itself, give rise to any requirement for the Minister to make inquiries about what might have happened during the intervening period. The reasons given for a decision may support an inference that the Minister has, rationally and essentially, considered that there is sufficient probative material to support the findings made: see Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1456 at [37] (Hespe J), appeal dismissed in Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6; (2026) 315 FCR 159 at [54] (Charlesworth, Kyrou and Neskovcin JJ) (Luong FC). That was a case where, at the time of an adverse decision under s 501BA, the unsuccessful applicant had been living in the community for 13 months after the Tribunal decided to revoke the earlier cancellation of his visa.

57    There is no dispute, however, that the power conferred by s 501BA is to be exercised reasonably and that ‘where, as here, the power is pre-conditioned by the formation of a state of satisfaction, there is an implied requirement that the requisite state of satisfaction be reasonably formed’: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [40] (Charlesworth J) and the authorities cited there; see also XMBQ FC at [27]. Legal unreasonableness involving jurisdictional error may affect either the outcome of the exercise of the power in s 501BA or the reasoning that led to that outcome: Luong FC at [44].

58    The ‘state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person’: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). While this was said of a different provision of the Migration Act, there is no doubt that it applies to the state of satisfaction required under s 501BA.

59    In the same passage from SZMDS, Crennan and Bell JJ confirmed that if the complaint is one of illogicality or irrationality, then for jurisdictional error to arise the decision under review in relation to the required state of satisfaction must be ‘one at which no rational or logical decision maker could arrive on the same evidence’. Their Honours further confirmed: ‘Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.’ Unreasonableness is a ‘necessarily stringent’ concept, and is to be assessed keeping in mind the statutory scheme at issue, which here includes the express exclusion of the rules of natural justice: Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24 at [65] (Lee J), citing Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ).

60    The question of what is legally unreasonable may be influenced by the Minister’s own choice as to which matters to take into account. In CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [39] (citations removed), Owens J said in the context of s 501BA that:

even though the rules of natural justice do not apply, and the Minister is entitled to inform himself as he sees fit in relation to matters relevant to the national interest, one can easily imagine a situation where, having identified particular considerations affecting the national interest in relation to an applicant’s visa in some specified way, the need to undertake a legally reasonable fact-finding process might compel the Minister to seek out evidence or information on particular topics.

61    Thus his Honour, in CRRN at [56]-[62], following LJTZ at [46], held that in the circumstances of the case before him, the Minister having identified the risk posed by the applicant to the Australian community as relevant to the national interest, it was necessary to a rational determination of the national interest issue for the Minister to make findings about certain matters, and in failing to do so he fell into jurisdictional error.

LJTZ

62    It is necessary to consider LJTZ in some detail, because counsel for Mr Wachipa relied on it quite heavily and, as will be seen, I respectfully consider that it is important to the disposition of this case.

63    In LJTZ, the Minister who made a s 501BA decision said in the reasons that he had regard to material before the Tribunal when, it was found, that material was not in fact before the Minister. The statement was therefore found to be ‘simply untrue’: LJTZ at [36]. The Minister had also proceeded in the reasons on the basis that the information before him was current, when in fact it was dated: LJTZ at [65]. The Minister’s reasoning also proceeded (LJTZ at [104]):

from the erroneous premise that the Minister has before him all of the information that bears on the topic of the applicant’s rehabilitation efforts following his release into the community, when (as a consequence of the choice not to afford procedural fairness) he plainly did not.

64    In LJTZ at [45]-[46], Charlesworth J described a ‘temporal’ feature of the power under s 501BA as follows:

the Minister must identify what the national interest requires at the time that the power is exercised, not what it might have required at some earlier time.

In the absence of mandatory relevant considerations, it was otherwise for the Minister to identify for himself (within the bounds of legal reasonableness) the matters he considered to be relevant to the national interest.

65    And at [48]:

The Minister was not obliged to invite the applicant to comment on the proposed cancellation of his visa or provide more up to date information. It nonetheless remained necessary for the Minister to make a finding about what the national interest required as at the date of the decision and not at some earlier time. The temporal requirement in s 501BA(2)(b) does not change depending on the extent to which the evidentiary material before the Minister in a given case is out of date. The more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness. Much will depend on the inferences reasonably capable of being drawn about present day circumstances from the dated material.

66    See also at [85]: ‘the task of the Minister was to evaluate that risk as it existed not at the time of the second delegate’s decision but at the time of his own decision’. The second delegate’s decision referred to here was a decision to refuse to revoke the original visa cancellation, which preceded the Tribunal’s decision. Charlesworth J said that in a context where her Honour was ‘concerned with a positive finding made by the Minister as to a present day state of affairs based on dated information in the Minister’s actual possession which was treated in the reasoning process as though it was up to date and which was contradicted by more up to date information in the Minister’s constructive possession’.

67    Thus, in LJTZ at [63]-[65], Charlesworth J held that the Minister had made a finding that the applicant had not engaged in rehabilitation relating to his alcohol abuse at the time of the Minister’s decision. He had therefore treated dated submissions as if they were current. Mr Wachipa here accuses the Minister of having made a similar error. It should be noted, however, that as has already been foreshadowed, in LJTZ the Minister had more-up-to date information in his constructive possession, which showed that the applicant had more recently engaged in rehabilitation in connection with his alcohol abuse: see [74].

68    The reference to constructive possession is illuminated by LJTZ at [75]-[79], where Charlesworth J observed that information may be ‘constructively’ before the Minister, in the sense that Mason J identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, when his Honour said (at 45) that:

there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

69    At [83]-[85] her Honour confirmed that the subject matter, scope and purpose of s 501BA gave rise to a requirement, at least where the Minister reasons as though the information before them was up to date, to take account of up-to-date material that is in the Minister’s ‘constructive possession’. As her Honour then explained at [86]:

On the particular facts of the present case, having identified the topic of the applicant’s rehabilitation efforts as relevant, it was not open to the Minister to have selective regard to the material before the second delegate but to ignore the very existence of more up to date material from the same source in his actual or constructive possession that bore upon the topic. I am reinforced in that view by the text of s 501BA(2) of the Act, expressed as it is in the present tense. Having regard to the text, context and purpose of s 501BA(2), subject to questions of materiality, s 501BA of the Act does not authorise the arbitrary course of fact finding just described. I reach that conclusion whether or not the subject matter determined by the Minister to be relevant on the facts of the case before him might otherwise be characterised as a mandatory relevant consideration in all cases, and notwithstanding that the rules of natural justice had no application.

70    This approach to the constructive possession of knowledge held by the Department is consistent with the subsequent dicta of a plurality of the High Court in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 282 CLR 1 at [18], where their Honours said: ‘The law treats the collective knowledge and experience of the department as the Minister’s own knowledge and experience.’ Their Honours quoted a passage from Lord Diplock’s judgment in Bushell v Environment Secretary [1981] AC 75 at 95, which included the statement: ‘The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.’

71    In LJTZ at [100], Charlesworth J described the possible consequences for the Minister’s decision of a gap in time concerning the materials considered as follows:

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

72    Charlesworth J went on to apply those principles to circumstances with some similarity to the present case, as follows:

101     The problem is demonstrated by the Minister’s reasoning to a conclusion that the applicant had made no rehabilitative attempts in relation to his abuse of alcohol. It also manifests in the Minister’s finding at [50]. There, the Minister noted the remarks of a sentencing judge to the effect that the applicant had ‘reasonable prospects of rehabilitation’ if he undertook treatment recommended by an expert psychiatrist. The Minister continued:

… I agree with this assessment, but whether he continues the treatment in the community has not yet been established and ‘reasonable’ prospects of rehabilitation leaves open a risk of reoffending.

(emphasis added)

102     Like many passages in the Reasons, the words of [50] are duplicated from the written reasons of the second delegate. It may be that the cutting and pasting of passages of reasoning from the older decision had the perceived benefit of administrative efficiency. However, in the particular circumstances of the present case, the exercise in efficiency resulted in the Minister reasoning in an illogical way. The Minister adopted the conclusion that the question of whether the applicant would continue treatment in the community had not yet been tested. The expression ‘not yet’ speaks prospectively to future circumstances that are yet to play out. The words make sense at the time of the April 2020 decision, at which time the applicant had not yet been released. They make little sense when considered from the date of the Minister’s decision, the applicant having been released into the community some 11 months prior.

73    At [103] Charlesworth J observed that it may well be open to the Minister to draw inferences about the likely current state of affairs on the basis of what is known about the past. But attention must be paid to whether that is a course of reasoning that the Minister has in fact adopted.

74    Counsel for Mr Wachipa also drew parallels between this case and findings made in LJTZ at [106] that the Minister had proceeded:

from the fictional footing that the applicant’s dated statements about his past circumstances represented all that he had to say about his current circumstances, and in reasoning from the absence of evidence about the outcome of medical treatment to the positive conclusion that there were none.

75    Counsel for Mr Wachipa also drew parallels with findings made in LJTZ at [133] that, having chosen to take into account the best interests of relevant children, the Minister ‘did not turn his mind at all to their present day circumstances and so could not have weighed those circumstances in the balance as a primary consideration’. It is important to the resolution of this case to explain how Charlesworth J arrived at that finding.

76    Her Honour did so in the context of a ground of review that alleged that the Minister had ‘failed to give real, genuine and proper consideration’ to the best interests of minor children impacted by the proposed decision, being a matter the Minister had himself identified as a ‘primary consideration’. At [122]-[127], Charlesworth J reviewed authorities that bore upon the question of what amounts to ‘genuine’ consideration of a relevant matter. The review included the well-known comments of Allsop CJ (Markovic J agreeing) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 62 at [3] about how ‘the obligation of real consideration of the circumstances of the people affected’ requires ‘confronting what is being done to people’. It also encompassed the doubts (to say the least) cast on the general applicability of those comments by the plurality of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24]-[27].

77    I will not make an already lengthy judgment longer by quoting or paraphrasing her Honour’s analysis here. I will only express respectful agreement with that analysis, including the conclusion her Honour reached at [127]:

In Hands Allsop CJ referred to the text, context and purpose of the provisions of the Act conferring powers that affect a particular factual subject matter, namely, the lives of people. The concern is one that the Minister in the present case said that he was alive to: the applicant has minor children residing in Australia. The task of the Minister was to first identify and then have regard to the impact the cancellation of the applicant’s visa would have on their lives. Necessarily, that entailed weighing in the balance the children’s actual factual circumstances.

Cases subsequent to LJTZ

78    LJTZ must, with respect, be read in light of the subsequent Full Court case of EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492. There, the Court was considering an exercise of power under s 501(3) of the Migration Act, which permits the Minister to refuse to grant a visa or to cancel a visa if the Minister reasonably suspects that the relevant non-citizen does not pass the character test and the Minister is satisfied that the refusal or cancellation is in the national interest. As with the analogous power in s 501BA, the rules of natural justice do not apply to a decision under s 501(3): s 501(5).

79    In EUF20 at [37], the Full Court (Abraham, O’Sullivan and Raper JJ) observed (citation removed) that:

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.

80    At [38] their Honours confirmed that the power under s 501(3) must nevertheless be exercised reasonably.

81    In Palmer, a s 501BA case, Derrington and Hespe JJ followed EUF20 when they said (at [123] – most citations removed):

The absence of any obligation to accord natural justice to the visa holder has the consequence that the only material which might be sent to the Minister by the visa holder which is legally relevant to the Minister’s decision is that which he or she chooses to consider. No error can arise from the Minister ignoring any material received in the absence of any obligation to consider it. As was observed in EUF20 in relation to a relevantly indistinguishable power, being s 501(3) of the Act, there is no free-standing obligation to have regard to new information received by the Minister even if it was possibly relevant. Indeed, given the exceptional nature of the power in s 501BA(2) and the relative decisional freedom of the Minister as to what might be considered in determining what is in the national interest any failure of the Minister to consider material which was presumptively relevant to the decision cannot, without more, go to jurisdiction.

82    EUF20 was also followed in relation to s 501BA in Luong FC at [47].

83    Evaluating whether legal unreasonableness arises will always, of course, depend on the particular facts of the case. For example, in Chapman Lee J held that the Minister had not acted unreasonably; in part because the Minister did not make an assumption that the state of affairs was the same as it had been at the time of the Tribunal decision, and had not proceeded as though he had before him everything the applicant might have had to say on relevant topics: see Chapman at [67].

84    In GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415, also in the context of s 501BA, at [39] Bennett J followed EUF20 and Chapman to hold that the exclusion of the rules of natural justice from any decision under the section meant that the Minister was free to make a decision in the absence of full information about circumstances that can be assumed to have changed since the decision of the Tribunal. Thus at [43] her Honour held that:

the legislative choice made to exclude procedural fairness carries with it a number of consequences, including the potential to proceed on the basis of incomplete information, and in the absence of factually relevant information which the affected person might otherwise be able to provide, including information that is more up to date.

85    Nevertheless, in the case before her, Bennett J held (at [52]) that in his consideration of the attitude of the applicant to psychological treatment or counselling, the Minister erred because the evidence about that had been given 10 months earlier, so that statements in the Minister’s reasoning that the applicant had not continued seeking psychological treatment and had taken only limited steps towards rehabilitation, lacked an evidentiary foundation. At [53] her Honour cited LJTZ in support of this approach.

86    In Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192; (2025) 314 FCR 376 at [96], Kyrou and Needham JJ (Snaden J agreeing) did not interpret LJTZ as standing for any proposition that:

in order for the Minister’s exercise of that power to be within the bounds of legal reasonableness, the Minister is required to make findings of fact about those matters on the basis of up to date information and to identify the weight to be afforded to them in reaching the requisite state of satisfaction for the purposes of that section.

87    Thus (Po’oi at [97]): ‘Failure to make findings of fact on the basis of up to date information in relation to a factor described as “relevant” by the Minister in exercising the broad discretionary power in s 501BA, without more, does not go to jurisdiction.’ Their Honours instead required what they described as an actual or constructive failure to consider a matter that the Minister (expressly or impliedly) states is sufficient in itself to dispose of the case: See Po’oi at [65] and [97].

88    More recently, in Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; (2026) 315 FCR 435 the Full Court (Perry, Kennett and Shariff JJ) appears to have endorsed the reasoning in GRCF, and found that the Minister erred in relying on 13 month old material that was before the Tribunal where ‘no attempt had been made to obtain any updated information’: SSVJ at [45]. That was where there ‘was no express acknowledgement of the absence of up-to-date information’. The views the Minister had expressed about the non-citizen’s circumstances at the time of the s 501BA decision therefore ‘did not have a rational basis’: SSVJ at [48].

89    It would be a mistake in any event to elevate the approach taken in other cases under s 501BA to some kind of generally applicable principle. As Gageler J said in SZVFW at [59] (quoting from Universal Camera Corp v National Labor Relations Board 340 US 474 (1951) at 489): ‘Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, “[t]here are no talismanic words that can avoid the process of judgment”.’

What these authorities mean in relation to the issues here

90    I accept that the Minister must reach a state of satisfaction about the national interest as at the time of the Minister’s decision under s 501BA. The state of satisfaction triggers cancellation of the visa. It would not be rational to think that cancellation was warranted if, by the time of the cancellation, the relevant concerns about the national interest were no longer held.

91    Even so, it follows from the authorities canvassed above that there is no principle that the Minister will necessarily err simply by disregarding up to date information that was in the Minister’s actual or constructive possession. Much will depend on the examination of the Minister’s actual reasoning process in the given case.

92    Still less does it follow that the Minister will necessarily err by disregarding information that the Minister did not have, actually or constructively, or by failing to make inquiries that would have ascertained that information. More broadly, there is not necessarily an error because of any given lapse of time between the currency of the information on which the Minister relies and the date of the Minister’s decision.

93    To be clear, each of those things may still be relevant circumstances that contribute to a finding of legal unreasonableness. But there is no substitute for a fact-sensitive evaluative inquiry in each case as to the logicality or reasonableness of the Minister’s approach, in light of what was, and was not, before the Minister, and in light of how the Minister actually reasoned.

94    That inquiry will, of course, need to be informed by the admonishment found frequently in the authorities that an applicant alleging legal unreasonableness has a stringent standard to meet.

The errors alleged here

95    In light of those principles, I now turn to consider each of the errors alleged under grounds 2 and 3. As summarised above, there are three:

(1)    The process of reasoning concerning the risk that Mr Wachipa might relapse into substance abuse, leading him to engage in serious criminal behaviour, was illogical. This was because the reasoning was founded on an assertion that Mr Wachipa’s ability to refrain from substance abuse had not been tested in the community, when in fact he had been in the community for 13 months and his parole had ended some four months previous to the 501BA Decision.

(2)    The ‘reasoning’ that the nature of the conduct that Mr Wachipa might repeat was ‘insert brief description of conduct’ was devoid of intelligible meaning.

(3)    The reasoning about minor children who might be affected by the 501BA Decision and about Mr Wachipa’s ties to the community, in particular his family, was illogical and irrational. This was because the Minister relied on information that was over 14 months old, which he ought to have known would not reflect the situation at the time of the 501BA Decision. It is thus alleged that the Minister failed to consider these relevant matters. Both matters are treated in Mr Wachipa’s submissions as part of the same point, concerning his family circumstances 13½ months after his release from immigration detention.

The alleged error about substance abuse

96    Mr Wachipa submits, and I accept, that in deciding what was in the national interest, the Minister attached great significance to the association between Mr Wachipa’s drug use and his prior offending. It follows from the principles set out above that, having determined that this matter was relevant to the 501BA Decision, the Minister was required to reach a conclusion on the point that was not legally unreasonable, in a way that a logical or rational person would.

97    The focus of Mr Wachipa’s submissions was on the finding at paragraph 33 of the Reasons, which is reproduced at [31] above, that he was on parole until 24 May 2024, and his ability to refrain from substance abuse had not been tested in circumstances where he was neither incarcerated or under supervision ‘for any substantial period of time’. Mr Wachipa submits that this finding was illogical or irrational, because when the 501BA Decision was made Mr Wachipa’s parole had expired four months previously. According to Mr Wachipa, the finding was ‘patently wrong’ at the time it was made. He had been in the community for over a year and had not relapsed, although, again, he does not suggest that the Minister knew that.

98    With respect, these submissions merely express emphatic disagreement with the Minister, to which no particular legal consequence attaches: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J). While the Minister was required to reach a state of satisfaction about the national interest at the time of the 501BA Decision, he was not required, as such, to reach that state on the basis of up-to-date information. And in contrast to cases like LJTZ, read fairly and as a whole, the Reasons do not indicate that, in relation to this point, the Minister was proceeding on the false premise that he had up-to-date or comprehensive information. Further, the Minister was not making any finding as to past facts concerning abstinence or lack thereof. He was making a prediction about future risk.

99    In that context, I am not persuaded that paragraph 33 of the Reasons involves jurisdictional error. The Minister was aware that Mr Wachipa had been in the community since the date of the Tribunal Decision and was further aware that his parole had expired on 24 May 2024. The statement that Mr Wachipa’s ‘ability to refrain from substance abuse has not been tested in circumstances where he is not either incarcerated or under supervision for any substantial period of time’ (my emphasis) shows that the Minister had reasoned that Mr Wachipa’s ability to abstain from substance abuse would only truly be tested when the supervision that came with his parole was at an end. And at the time that the Minister said that Mr Wachipa’s ability to abstain had not been tested ‘for any substantial period of time’, that supervision had ended some four months previously.

100    In contrast to LJTZ (see [72] above) the Minister here did not reason from a lack of rehabilitative attempts at the time of the Tribunal Decision to a conclusion that there had been no such attempts at the time of the 501BA Decision. The reasoning in this case was quite different, and involved an opinion that the time that had lapsed since the end of parole was not enough to persuade the Minister that Mr Wachipa would continue to abstain.

101    The views the Minister reached in that respect were open to him. Opinions may reasonably differ as to the significance of parole supervision, and as to whether the four months that had elapsed since parole ceased was a ‘substantial time’. I simply disagree with the submission made on behalf of Mr Wachipa that ‘[i]t cannot be seriously contended that four months is not any substantial period of time’ (ts 24). It is not necessary, and perhaps not possible to articulate precise reasons for that disagreement; it is enough to say that as a matter of evaluative impression, it was reasonably open for the Minister to say, in effect, that four months was not long enough to prove Mr Wachipa’s ability to abstain.

102    That is especially so in light of the previous uncontested findings in the Reasons, noted above, that Mr Wachipa had been ‘suffering from a drug addiction since he was 17’ and that he had relapsed on release from prison in 2018. It was open to the Minister to reason that longer unsupervised abstinence was necessary to satisfy him that Mr Wachipa’s drug problems were behind him. Agreement with this reasoning is not to the point, nor is emphatic disagreement. It is a line of reasoning that was reasonably open in all the circumstances.

The placeholder error

103    Taken by itself, it is nonsensical to find ‘that insert brief description of conduct has the potential to cause serious physical and or psychological injury and/or financial harm to members of the Australian community, if repeated’ (my emphasis). It is obvious that whoever drafted the Reasons inadvertently failed to substitute an actual description of relevant conduct for this placeholder or template phrase, and that the Minister did not notice the error.

104    That undoubtedly shows a lack of care in the preparation and proof reading of the Reasons, but the real question is whether it evidences an actual failure in the reasoning process: see e.g. CRI026 v The Republic of Nauru [2018] HCA 19 at [57] (Kiefel CJ, Gageler and Nettle JJ). Regrettable carelessness of this kind is not necessarily a failure to perform the statutory task: see XYJY v Minister for Immigration and Citizenship [2025] FCA 1572 at [72] (Halley J). In such situations it is still necessary to conduct a fair reading of the reasons as a whole: EUD24 v Minister for Immigration [2024] FCA 1474 at [22] (Logan J, whose decision was upheld on appeal in EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155).

105    In my view, it follows from these authorities that the task here is to read the Reasons fairly and as a whole, while at the same time acknowledging that the sentence is obviously wrong, and not straining to give it content or meaning that it cannot reasonably bear. When that is done, the Minister’s intended meaning in the impugned passage is readily discernible. In the offending paragraph 37 (reproduced at [31] above), the Minister is referring back to a finding that he says he has already made (‘I have found that…’). It was plainly a previous finding that certain conduct had ‘the potential to cause serious physical and or psychological injury and/or financial harm to members of the Australian community, if repeated’. That phrase is employed at paragraph 26 of the Reasons, reproduced at [29] above. That previous finding was in turn expressly based on Mr Wachipa’s ‘offending history, as outlined above’. That in turn plainly refers to the accumulated history of offending recounted at paragraphs 19 to 25 of the Reasons.

106    That understanding is confirmed by the concern expressed in paragraph 38 that there was a moderate likelihood that Mr Wachipa would ‘reoffend’, and by the implicit linking of that to engaging in ‘similar conduct again’ that would be likely to result in ‘serious psychological and/or physical harm and/or financial harm to members of the community’.

107    In short, it is clear enough what the Minister should be taken to have intended to say in paragraph 37 of the Reasons. It should be inferred that he meant to refer to all the criminal conduct described at paragraphs 19 to 25. The obvious error in preparing and checking the Reasons is not a jurisdictional error.

Minor children and ties to the community

108    This error was advanced under ground 3. Also advanced under that ground was a contention that the errors asserted under ground 2 affected the Minister’s exercise of discretion, but given the conclusions I have already reached, that contention falls away.

109    The Minister determined that it was relevant to the exercise of the s 501BA discretion to consider the effect of cancellation of the visa on minor children, and to consider Mr Wachipa’s ties to the Australian community. Once again, having made those determinations, it was incumbent on the Minister to reach conclusions about those matters in a manner that was not irrational, illogical or otherwise legally unreasonable.

110    The Minister’s reasoning and findings about those matters is summarised above at [35]-[38].

111    Mr Wachipa does not suggest that any subsequent changes in his family circumstances were in the Minister’s actual or constructive knowledge. He does submit, however, that in materials that were before the Tribunal, he had expressed an intention to start a family on his release, and the Minister had constructive knowledge of that, at least.

112    Mr Wachipa also submits that, in proceeding on the basis of what was before the Tribunal in relation to minor children and ties to the Australian community, the Minister proceeded on information that was ‘significantly outdated’. In particular, the Minister appears to have proceeded on the basis of Mr Wachipa’s submissions to the Tribunal on 4 July 2023, nearly 15 months prior to the 501BA Decision.

113    Mr Wachipa submits further that it was ‘inherently likely that, in the case of a man in his late 20s who has been in custody for several years, the nature of his ties to the Australian community and the identity of minor children that form part of his life are likely to change’: (applicant’s principal submissions para 50). That, together with the constructive knowledge mentioned above, means that it was ‘illogical for the Minister to implicitly assume that the same or even a similar state of affairs persisted at the time of the Decision as had been the case in July 2023’: ibid para 51, relying on LJTZ at [100].

114    In that respect, counsel for Mr Wachipa pointed out that the Reasons ascribe an age to one of the children which was correct at the time of the submission to the Tribunal, and so could not have been correct nearly 15 months later at the time of the 501BA Decision. While not significant in itself, this error suggests that the Minister was proceeding on the basis that relevant circumstances had not changed during that period.

115    The Minister submits that Mr Wachipa’s argument under ground 3 reduces to the proposition that the Minister must ensure that the information available to him is the most-up-to date information available, or is otherwise complete. With respect, this does not do justice to Mr Wachipa’s argument. Had it been put that categorically then, on the principles discussed above it would be wrong. But that is not how it was put.

116    Rather, the question Mr Wachipa’s argument poses is whether in all the circumstances, including the Minister’s constructive knowledge of Mr Wachipa’s intentions to start a family, it was irrational or otherwise unreasonable for the Minister to proceed on the basis that in the 13½ months since the Tribunal Decision, his family circumstances had not changed. An aspect of that question is whether, acting reasonably, the Minister should have inquired as to whether they had changed.

117    It is convenient to start by noting that the Reasons do not suggest that the Minister wrongly considered that he had complete information. They simply summarise the submissions and material put to the Tribunal, without saying anything about how comprehensive or current that material was. Refraining from reading the Reasons with an eye attuned to the detection of error requires the Court to give the Minister the benefit of the doubt, so as not to conclude that the Minister implicitly thought that he had all the information that could bear on the matters he had chosen to consider. The Minister did not illogically treat an absence of evidence about further children or family members as evidence of their absence.

118    Nor do the Reasons suggest that the Minister wrongly found that the information before him was up to date. While they speak in the present tense – ‘Mr WACHIPA submits that the following minor children in Australia could be affected by a decision to cancel his visa’ (at para 49) – Mr Wachipa does not suggest that this way of expressing the Reasons means the Minister wrongly thought that the submissions to the Tribunal were current.

119    Further, there was no information in the Minister’s actual or constructive possession that positively contradicted the material on which the Reasons was based.

120    Those matters distinguish this case from LJTZ. A further point of distinction, of course, is that the Minister here did not proceed on the false basis that he had material that was not in fact before him.

121    Nevertheless, I consider that the Minister did fall into jurisdictional error in the way that he approached children and family members affected by the 501BA Decision. The starting point is that the Minister in this case chose to treat those matters as relevant to the exercise of the discretion; indeed he said that the interests of ‘any affected minor children’ were a significant consideration. It follows that he was required to make findings of fact about those matters in a legally reasonable way.

122    That brings us to the proposition, affirmed by the Full Court in Po’oi, that failure to make findings of fact on the basis of up-to-date information in relation to a factor deemed by the Minister to be relevant ‘without more, does not go to jurisdiction’: see [87] above. Here, in my respectful view, there was ‘more’. The Minister had done more than identify the best interests of minor children as ‘relevant’; by invoking the Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990) he identified that factor as ‘significant’ (para 48). And he had identified emotional hardship likely to be experienced by family members, not only as relevant, but as forming part of ties to Australia that weighed strongly against visa cancellation.

123    In that context, the Minister was proceeding on the basis of information that was almost 15 months old. While there is no hard and fast threshold, that lapse of time was of an order of magnitude that reasonably raised the question whether circumstances had changed. The circumstances concerned a large extended family involving young children who were growing up where, palpably, there was a real possibility that things had altered in a meaningful way over that time. Mr Wachipa was a 29 year old man who had been living in the community for most of that period. Added to that, the Minister constructively knew that Mr Wachipa had expressed the intention to start a family.

124    In view of those matters, it was not reasonable for the Minister to proceed on the basis of the materials that were some 15 months old, as though they stated the position as at the time of the 501BA Decision. That is not because the Minister mistakenly believed that they stated the position at the time of the decision. Minor slips such as stating the previous age of the grandson as though it was current do not establish that error. It is because a decision maker who has chosen to embark on consideration of Mr Wachipa’s family circumstances, and to treat the best interests of any affected minor children in Australia as a significant consideration, would, acting reasonably, seek to understand those circumstances and those children as at the date of the decision.

125    It is not necessary to fix the label of ‘genuine’ consideration to such a requirement. It is simply the approach that a reasonable decision maker would take in all the circumstances so that, conversely, a reasonable decision maker would not take the approach the Minister took. Given the stated significance of the best interests of affected children, a reasonable decision maker would turn their mind to what those circumstances were, and even more fundamentally who those children were, as a ‘matter of factual reality’ at the time of the decision: cf. LJTZ at [133]. There is no suggestion in the Reasons that the Minister had drawn inferences from the material before him that the children and family members he had identified were still the only relevant children and the only relevant family members: cf. LJTZ at [103] mentioned at [73] above. Read fairly and as a whole, the Reasons indicate that the Minister did not turn his mind at all to whether the lapse of time had any significance. That was where, at almost 15 months old, the material was so dated that it was unreasonable for the Minister not to turn his mind to that: LJTZ at [48]. He appeared to assume implicitly and without any identifiable justification that he could proceed as though nothing had changed.

126    Nor, in my view, is it necessary to go so far as to say that the Minister was bound in those circumstances to make inquiry, or to wrestle with the question of whether this is properly characterised as per Candemir as an ‘extreme case’. It is enough to say that I am persuaded that the lapse of time and the other circumstances mentioned above means that by confining his consideration to dated materials, the Minister failed to perform the evaluative task on which he had embarked in a reasonable manner. He said he was going to treat the interests of the minor children as significant, but by the manner in which he approached the task, he did not. His conclusion about Mr Wachipa’s ties to Australia implies that he gave the interests of other affected family members weight, and yet that was belied by the manner in which he approached the task of ascertaining who those family members were, and what their interests were.

127    That was in all the circumstances unreasonable. As Charlesworth J said in LJTZ at [134], so in this case: ‘The error lies in the failure of the Minister to perform the fact finding task that necessarily followed from his own identification of the topic as not only relevant but of critical [or, I interpolate, ‘significant’ or ‘weighty’] importance.’

128    Further, and as in SSVJ, it would be possible to identify error in the Minister’s approach to the material before the Tribunal as if it were up to date, without acknowledging its age, or inferring that it remained current. That approach meant that his findings lacked a rational foundation.

129    In summary, while the lapse of time in itself did not disable the Minister from proceeding, and while the Minister did not have to give Mr Wachipa an opportunity to comment, and while proceeding on the basis of out-of-date and/or incomplete material was not necessarily a breach of any condition of the exercise of the power, and while refraining from inquiry was not necessarily by itself unreasonable, nevertheless, the exercise of power, judged in light of all the circumstances, was required to be reasonable. In view of Mr Wachipa’s circumstances as known or constructively known to the Minister he would not, had he been acting reasonably, have simply disregarded the possible significance of the substantial lapse of time to the very matters that he chose to purport to be considering, taking seriously, and giving weight. To exercise the power in that way and in those circumstances was to breach the implied condition that it be exercised within the bounds of reasonableness.

130    The Minister made no submission that unreasonableness in the approach to fact finding about affected minor children or family members was not material to the 501BA Decision.

131    Ground 3 is upheld.

Conclusion

132    The 501BA Decision will be set aside. In those circumstances, Mr Wachipa’s visa will be restored to him.

133    I am not persuaded that there is any need for the further relief he sought, being a writ of prohibition effectively restraining the Minister or the Department from acting on or giving effect to the 501BA Decision. Upon the quashing of the decision, Mr Wachipa will no longer be an unlawful non-citizen, and so will not be liable to removal from Australia under s 198 of the Migration Act.

134    Costs should follow the event.

Associate:

Dated:    25 June 2026