Federal Court of Australia

Kual v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 872

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the decision of the respondent made on 24 August 2025.

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

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This is an application for review of a decision of the respondent, the Assistant Minister for Citizenship, Customs and Multicultural Affairs to set aside a decision of the Administrative Review Tribunal and cancel the applicant’s visa. An application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) was brought, and not opposed by the respondent given the relatively short delay of only four days.

2    The applicant, Mr Dang Kual, was represented by Mr Lang SC pursuant to a referral for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). The Court is grateful for Mr Lang’s assistance, which is in keeping with the fine traditions of the Bar.

3    At the hearing on 9 March 2026, the applicant sought leave to rely on a Further Amended Originating Application for Review of a Migration Decision (amended application) in the form attached to its submissions dated 10 February 2026. The respondent did not object and the amended application was taken as filed on 9 March 2026. The applicant also relied on an affidavit of Mr Kual dated 3 October 2025.

Background

4    Mr Kual is a citizen of Sudan who came to Australia when he was six years old, some 20 years ago, and has not departed since. He has a three year old daughter, who is an Australian citizen and a number of immediate and extended family members in Australia including his mother, two sisters, three brothers, and nieces, nephews, aunts, uncles and cousins. He came to Australia on a Global Special Humanitarian (Class XB) (subclass 202) visa. At the time of the hearing, Mr Kual was in immigration detention.

5    Mr Kual has a criminal history and had been sentenced to terms of imprisonment on three occasions. Following offending that resulted in his incarceration, on 17 May 2023, a delegate of the Minister for Immigration cancelled his visa under s 501(3A) of the Migration Act.

6    Mr Kual sought revocation of the visa cancellation under s 501CA(4) of the Migration Act, and on 20 October 2024, a different delegate refused to revoke the visa cancellation.

7    On 21 January 2025, the Tribunal set aside the delegate’s decision, and decided in substitution that there was another reason why the cancellation of the applicant’s visa should be revoked. As a result, Mr Kual’s visa was reinstated. On 24 August 2025, the Assistant Minister made a decision to set aside the Tribunal Decision. The applicant now seeks judicial review of that exercise of power on the grounds that it was illogical, irrational and exceeded the bounds of reasonableness.

8    The grounds raised in the amended application are that the Assistant Minister:

(a)    failed to explain how the decision would protect the Australian community in circumstances where it acknowledged matters giving rise to the possibility that the applicant might remain in the Australian community;

(b)    concluded that the applicant’s offending included instances of real severity based on the persistence of his offending;

(c)    proceeded on an incorrect basis that the applicant had committed crimes of a violent nature each time he had returned from prison; and

(d)    failed to adequately identify the expectations of the Australian community,

and in each case, committed jurisdictional error.

Relevant principles

9    The Assistant Minister’s decision was made under s 501BA of the Migration Act, pursuant to which he has personal discretionary power to override a decision of the Tribunal if satisfied that the person does not pass the character test on the basis of specific paragraphs of s 501(6) of the Migration Act, and forms the view that cancellation would be in the national interest.

10    The power in s 501BA is “fundamentally different” from that exercised by the Tribunal under s 501CA: Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 287 at [61]. The Minister may exercise the discretion under s 501BA(2) for reasons that are entirely different from the reasons given by the delegate or the Tribunal for exercising the discretion to set aside the revocation decision under s 501CA. In CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [34], Owens J said:

… Because the criteria against which the respective decision-makers’ powers are to be exercised differ, it is perfectly possible that the Minister might agree entirely with the Tribunal’s reasoning and decision in the context of the basis upon which the power was required to be exercised. It is the fact that the Minister forms the view that the result is contrary to the national interest that enlivens the “override” power, and nothing more. Once more, what is being “overridden” is the result, quite independently of the reasoning that produced it.

11    The Minister’s power in s 501BA(2), to consider the national interest, is a concept that is “broad and evaluative” and “largely a political question”: EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; 311 FCR 155 at [31] (Hill J, with whom Cheeseman and Owens JJ agreed). Despite that, it is not without its limits: SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954 at [8] (Perram J).

12    It is well established that jurisdictional error on the part of a statutory decision maker can include:

misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

(See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [3]).

13    As to exceeding the bounds of reasonableness, Stewart and Needham JJ held at [90]-[91] of XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; 311 FCR 539:

A conclusion of legal unreasonableness such as to amount to jurisdictional error can be reached either in relation to the outcome of the decision (eg if it is “so devoid of plausible justification that no reasonable person could have taken that course”: Li at [91] per Gageler J quoting from Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290 per Mason CJ and Deane J) or to the reasoning process by which the decisionmaker arrived at the exercise of power. …

That quality of unreasonableness has been expressed in different ways by the High Court including:

•    that the relevant decision was not “reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power” …;

•    that the relevant decision “lacks an evident and intelligible justification” …;

•    there is an absence of “justification, transparency and intelligibility within the decision-making process” …; and

•    it is “not possible to comprehend how the [decision maker] made its findings” …

14    Where the reasonableness review concentrates on an examination of the reasoning process by which the decision maker arrived at the exercise of power, it is the reasons given by the decision maker to which a supervising court should look in order to understand why the power was exercised as it was. It is immaterial if other reasons, not given by the decision maker, might justify the decision: Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ; XKTK at [93], [94].

Grounds of Review

15    The applicant advanced five grounds of review in the amended application. At the hearing, only grounds 2, 3(a), 3(b) and 3(c) were argued, which are summarised at [8] above. I will deal with each of those grounds in turn.

Ground 2 – did the Assistant Minister have regard to the protection of the Australian community?

16    Ground 2 is that the Assistant Minister committed jurisdictional error by failing to explain how and to what extent the decision would protect the Australian community “in circumstances where the Minister in substance acknowledged (in particular at [170]-[176] of the decision) matters giving rise to the possibility that the Applicant might, notwithstanding the decision, remain in the Australian community”. In other words, the Assistant Minister failed to consider whether Mr Kual will continue to be in the Australian community after cancellation of his visa.

17    Those paragraphs of the Assistant Minister’s decision cited in the amended application are extracted below:

Legal consequences of the decision

170.     I am aware that under s198 unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention under s189 provided that removal is practicable in the reasonably foreseeable future, noting also that s197C(1) provides that, for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.

171.     However s197C(3) provides that s198 does not require or authorise removal of a person to a country in relation to which a 'protection finding' has been made in the course of considering a protection visa application by the person, except in the circumstances set out in s197C(3)(c).

172.     A 'protection finding', as defined for the purpose of s197C(3) of the Act, made in the course of considering a protection visa application from a non-citizen, means that Australia will not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The Act, in particular the concept of 'protection obligations', reflects Australia's interpretation of its non-refoulement obligations and the scope of such obligations that Australia is committed to implementing.

173.     If relevant circumstances change, a reassessment of a protection finding can be made under s197D. A decision that the person was no longer a person in respect of whom a protection finding would mean that the person no longer engaged Australia's non-refoulement obligations and that s197C(3) no longer operated in respect of the person.

174.     I have considered Mr KUAL's claims that he has concerns for his safety if he is returned to Sudan. Mr KUAL expressed concern to the ART about being removed from Australia because of the war and tribal vendettas, stating that he considered his life would be in danger in Sudan. He further stated that he would be perceived as an outsider on return to Sudan which would also make him a target …

175.     I accept that the nature of the claims outlined above indicates a potential for Australia's international non-refoulement obligations to be engaged in relation to Mr KUAL.

176.     It is open to Mr KUAL to make an application for a Protection visa. During the processing of any such application, Mr KUAL's claims regarding Australia's non-refoulement obligations would be fully assessed.

Application for a protection visa

18    The applicant submitted that the Assistant Minister’s decision had acknowledged, but not properly engaged with, the possibility that Mr Kual may not be removed. Mr Lang submitted that while the Assistant Minister had accepted that there are circumstances in Sudan which may warrant a protection finding, he did not express a concluded view, and rather stated that there is a “potential” for those obligations to be engaged, and it is “open to Mr Kual to make an application”. He argued that if the legal consequences of the decision may not involve removal, and may not involve detention, the connection between cancellation and protection of the Australian community had not been made out.

19    The applicant relied on SSVJ in support of this ground, in which Perram J concluded that jurisdictional error was made out because the Minister’s conclusion was based on an illogical assumption as to the basis of the protection of the Australian community. SSVJ was on appeal when this matter came before me at hearing. On 13 April 2025, the Full Court delivered judgment dismissing the appeal in Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; 315 FCR 435 (Perry, Kennett and Shariff JJ) (the SSVJ appeal). The parties did not request to make further submissions following the delivery of reasons in the SSVJ appeal.

20    The applicant in SSVJ was from South Sudan, and sought judicial review of the Minister’s decision to cancel his refugee visa. The applicant was a member of the cohort to whom the decision in NZYQ v Minister for Immigration and Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 applied. The effect of NZYQ was that the applicant could not be held in immigration detention indefinitely. Thus, while s 189 of the Migration Act authorised his detention as an unlawful non-citizen, its operation was currently invalid in relation to him (at [13]-[14]). Perram J found that there was an “obscurity” in the Minister’s reasons, as while the Minister accepted that the applicant was a member of the NZYQ cohort and would remain in the community even if the visa was cancelled, the Minister proceeded on the assumption that the effect of any decision to cancel the visa would be that he no longer posed a threat to the community (at [16]). The Minister’s reasons did not explain why the cancellation would protect the Australian community, and “merely assume[d] that there was such a protective effect” (at [17]).

21    At [20], Perram J found that:

… The Minister’s process of reasoning depends for its efficacy upon the unstated assumption that the effect of the visa cancellation was that the community would be protected from the applicant’s criminal behaviour and that its expectations in that regard would be met. From the Minister’s reasons it is impossible to discern why the Minister thought that cancelling the applicant’s visa would have any impact on the protection of the community when, as the Minister accepted, NZYQ meant that the applicant would remain at large even if his visa was cancelled.

(emphasis added)

22    At [23]-[24], Perram J also found that it was not sufficient to point to the ways in which the Minister’s decision might be justified (by reference to the Court’s decisions in JNMQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1375 (Jackman J) and XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (Halley J)) if those reasons were not given by the Minister. The Court must look at the actual reasons and find the explanation as to why cancellation will have the protective effect.

23    The Full Court in the SSVJ appeal said (at [20]) that:

… the relevant state of satisfaction must be not only available on the material before the decision-maker but arrived at by a process of reasoning that conforms to basic notions of rationality. These requirements are aspects of “the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [90] (Gageler J)).

24    Similarly to SSVJ, the applicant submitted that it is not possible to discern from the Assistant Minister’s decision why he came to the view that cancelling the applicant’s visa would have an impact on the protection of the community. The applicant submitted that the present case was “more acute” than SSVJ; in that case, the Minister at least addressed the question of whether Australia’s non-refoulement obligations applied. Here, the Assistant Minister acknowledged the “potential” for the non-refoulement obligations to be engaged but refused to consider whether they were, until an application for a protection visa had been made. The Assistant Minister also did not refer to a circumstance where the applicant could be granted a bridging visa (including those which may be granted without an application). In those circumstances, it was submitted that the Assistant Minister was unable to conclude, and did not conclude, that the applicant would not continue to reside in the Australian community, did not address the circumstances in which he might do so and how they might differ from those pertaining to his visa, and did not address why, in those circumstances, the cancellation of his visa would protect the Australian community. Accordingly, the Minister had failed to provide an intelligible justification for the decision, and had made a jurisdictional error.

25    Counsel for the respondent, Mr Johnson, submitted that SSVJ could be distinguished from the present case in at least one crucial respect. What underpinned the “unstated assumption” in SSVJ was the proposition that the non-citizen was a member of the NZYQ cohort, and that cancellation of the applicant’s visa would protect the Australian community despite the fact that cancelling the applicant’s visa would not result in the applicant being removed. In SSVJ, the applicant had been the beneficiary of a protection finding such that the removal was not authorised under s 198 because of s 197C, and the applicant could not lawfully be detained in immigration detention because of the constitutional limits of ss 189 and 196 as they applied to him per NZYQ. Mr Johnson acknowledged that the protection finding in favour of the applicant in SSVJ had not been explicitly set out in the reasons, and the applicant in reply, submitted that it was not clear from the decision if, how, or when any such a finding may have been made.

26    In the present case, the applicant had not (yet) made an application for a protection visa, and there was no protection finding in his favour. As submitted by the applicant in reply, it was perhaps not surprising that Mr Kual had not made an application for a protection visa, as he still held a visa at the time of the Ministerial Review.

27    Section 198(5A) of the Migration Act provides that an officer must not remove an unlawful citizen if the non-citizen has made a “valid application for a protection visa”, and either, “the grant of the visa has not been refused” or “the application has not been finally determined”. If Mr Kual had made a valid application for a protection visa, there would be a prohibition on his removal until that application had been determined. This was not the case here, and the respondent submitted that Mr Kual was not a person in respect of whom the Assistant Minister could have reasoned was unable to be removed under s 198, or whose immigration detention was unauthorised by NZYQ. As stated at paragraph 176 of the Assistant Minister’s decision (extracted at [17] above), it was open to Mr Kual to make a protection visa application, and Mr Johnson submitted at the hearing that Mr Kual was neither barred by s 48A of the Migration Act, nor by reason of the Assistant Minister’s decision from doing so. Section 197C of the Migration Act also meant that it was irrelevant whether Australia had non-refoulement obligations in respect of the applicant as no valid application for a protection visa had been made. It was submitted that the Assistant Minister had correctly referred to the statutory scheme and found that the applicant was liable for removal to Sudan (see paragraph 170 of the Assistant Minister’s decision, extracted at [17] above).

28    Where no application for a protection visa had been made, the respondent submitted that the Assistant Minister “went sufficiently far to acknowledge and understand that Mr Kual could make a protection visa application”, but was not required to speculate as to whether he might.

29    In reply, Mr Lang submitted that even if Mr Kual did not make an application for protection, it may still not be reasonably practicable to remove him. And so the Assistant Minister’s reasons had a logical gap where it was assumed that Mr Kual may be removed in the reasonably foreseeable future.

Whether removal is reasonably practicable

30    The applicant also relied on the High Court’s decision in ASF17 v Commonwealth of Australia [2024] HCA 19; 282 CLR 172 to submit that, in order properly to consider how the cancellation of Mr Kual’s visa led to the protection of the Australian community, the Assistant Minister would have needed to address a circumstance where Mr Kual applied for a protection visa and a protection finding was not made. Here, the removal obligation does not apply if it is not reasonably practicable to remove the applicant, and instead a bridging visa may be available. Mr Lang referred to ASF17 at [41] where the majority (Gageler CJ, Gordon, Steward, Gleeson, Jagot, Beech-Jones JJ) said:

Where a country has been identified to which a detainee might permissibly be removed under s 198(1) or s 198(6) consistently with s 197C of the Act, the question of whether there is a real prospect of removal of the detainee from Australia to that country becoming practicable in the reasonably foreseeable future is a question of whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future. The steps practically available to be taken can be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate. That such steps are to be regarded as remaining practically available to be taken in circumstances where the detainee refuses to cooperate in the taking of them reflects the nature of the constitutional limitation to which the inquiry is directed.

31    While ASF17 involved a refusal of the applicant voluntarily to return to Iran, and the Iranian authorities refusing to issue travel documents to involuntary returnees, Mr Lang submitted that it nevertheless demonstrated the “limit on the obligation to remove where the applicant cannot practically be removed in the reasonably foreseeable future”, separately from the question of a protection finding. The Assistant Minister could have said that he considered Sudan, or South Sudan, to be a place to which a person can be reasonably practically removed in the foreseeable future, but in failing to do this, the Assistant Minister left “unexplained the pathway by which he thought cancellation of Mr Kual’s visa would lead to the protection of the Australian community”, and accordingly, committed a jurisdictional error.

32    The respondent submitted that this paragraph of ASF17 must be read in the context of the issues that emerged in that case, namely, a non-citizen seeking to render their immigration detention unlawful under the constitutional limitation expressed in NZYQ by refusing to cooperate and enable their removal to their country of origin. Mr Johnson cited [38]-[39] of ASF17, noting that the Court was “dealing with the provisions through the prism of the constitutional limitation, not through the prism of the engagement of the removal power in [s] 198”.

33    It was further submitted that the question of reasonable practicality of removal went to the timing of the execution of that duty, rather than whether the duty exists. Mr Johnson cited NATB v Minister for Immigration [2003] FCAFC 292; 133 FCR 506 (Wilcox, Lindgren and Bennett JJ) in support of this proposition.

34    At [41]-[42] of NATB the Full Court held that:

The proper construction of s 198(6)

Paragraphs (a) to (d) of s 198(6) make it plain that the subsection is concerned with an unlawful non-citizen who

•    is a detainee;

•    has made a valid application for a substantive visa (not limited to a protection visa) that can be granted when the applicant is in the migration zone; and

•    does not have available any further administrative procedures provided by the Act for the obtaining of such a substantive visa.

Once the conditions specified in paras (a), (b), (c) and (d) of subs (6) are satisfied, the duty to remove as soon as reasonably practicable arises. However, unless removal is already reasonably practicable, there is not an immediate and absolute duty actually to effect the removal; the duty to remove becomes absolute only once removal becomes reasonably practicable.

(emphasis added)

35    And at [48]:

In M38 [M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146], the Full Court discussed the meaning of the expression “reasonably practicable”, and, in particular, the meaning of the word “reasonably” in that expression (at [65]-[69]). Subject to one qualification, we agree with their Honours’ observations. The qualification concerns their statement at [66] that “[i]n the context of 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses”. As the word “feasible” in both of the dictionary definitions suggests, at least some element of reasonableness is inherent in the notion of “practicable”. We find it difficult to accept, for example, that removal would be regarded as practicable, even without the qualifier “reasonably”, where no country was willing to admit the unlawful non-citizen.

36    In reply, the applicant submitted that there was nothing in NATB contrary to the submission that the Assistant Minister’s decision failed to conclude that it would be reasonably practicable, in the reasonably foreseeable future, to remove Mr Kual (absent any issue of a protection finding).

Determination

37    The reasons of the Assistant Minister do not address, in terms, the link between the protection of the Australian community and the cancellation of Mr Kual’s visa. This is in contrast to the decision under consideration in XKTK (where the applicant was to reside in Australia under a Bridging R (Class WR) visa (“BVR”) with conditions attached to it), and to SSVJ (where the applicant was part of the NZYQ cohort). Here, Mr Kual is in detention, and he may not be removed in the near future if he makes an application for a protection visa. But the Assistant Minister clearly had it in mind that as the applicant was currently in detention, cancellation of his visa would lead to his removal (see paragraph 170 of the Assistant Minister’s reasons, which deal with “legal consequences of the decision” and his recognition of removal in the “reasonably foreseeable future”).

38    Where Mr Kual had not made an application for a protection visa, it could not have been a misunderstanding of the task before the Assistant Minister to cancel the visa on community protection grounds given that the applicant was in detention and no protection visa had been applied for. The Assistant Minister acknowledged that non-refoulement obligations could be engaged were Mr Kual to make such an application, but that was not currently the position.

39    Ground 2 is not made out.

Ground 3 – the characterisation of the applicant’s offending

Ground 3(a) – severity and persistence

40    Ground 3(a) raises that the Assistant Minister committed jurisdictional error in concluding that the applicant’s offending included instances of real severity, which conclusion had as its base the persistence of his offending. It was submitted that that was an illogical characterisation.

41    In paragraphs 18 to 47 of his reasons, the Assistant Minister outlined the applicant’s offending under the heading “Seriousness of criminal conduct”. The offences relied upon by the Assistant Minister are summarised below:

(a)    On 26 March 2019, Mr Kual was convicted of “aggravated robbery” and sentenced to imprisonment of 27 months. While travelling on a train with his friends, he approached a Sikh gentleman, shoved and punched him and took his phone and backpack.

(b)    On 7 July 2020, Mr Kual was convicted of “stalk/intimidate intend fear physical etc harm (personal)” and “possess prohibited drug”, for which he was sentenced to imprisonment for 13 months.

(c)    On 12 May 2021, Mr Kual was sentenced for his involvement in “common assault” for which he was sentenced to a Community Corrections Orders for 12 months.

(d)    On 9 September 2022, Mr Kual was convicted of the same offence of “stalk/intimidate intend fear physical etc harm (personal)” and sentenced to a Conditional Release Order (the 9 September CRO) for a period of 12 months, without conviction. On 27 October 2022, he was convicted of “affray”, and sentenced to a Community Corrections Order (the 27 October CCO) for a period of 12 months.

(e)    On 3 May 2023, Mr Kual was sentenced to an aggregate term of 18 months imprisonment for “affray” (revoking the 27 October CCO) and “common assault” offences. The 9 September CRO was also revoked in lieu of a CCO for a period of 18 months and a conviction was recorded. Mr Kual lodged a severity appeal, which was partially upheld, and was sentenced to an aggregate term of 14 months imprisonment. The common assault offence involved Mr Kual entering a store with a group of people, punching the shop owner before the victim was “set upon by others” and “pushed, pulled and struck”. Mr Kual dragged the victim outside where the co-offender continued to attack the victim. While the victim was on the ground, Mr Kual “stepped back, wound his right leg, and kicked the victim in the head”. The sentencing remarks of the Magistrate in the Local Court described this as a “serious instance of assault”.

42    The Assistant Minister expressed “significant concern” that instances of Mr Kual’s offending occurred while he was released on parole for previous convictions (see paragraphs 30-32, 44-45 of the Assistant Minister’s decision). At paragraph 45, the Assistant Minister observed that “Mr Kual’s recurring breaches of conditional liberty illustrates a blatant disregard for the Australian judicial system and the laws that govern Australia, which further increases the seriousness of his offending”.

43    The Assistant Minister also considered non-violent offending over a period from 2017 to 2025. Mr Kual’s most recent conviction was on 6 June 2025 for “shoplifting value <=$2000”, and he was ordered to pay a fine of $600. The Assistant Minister accepted that this offending was not as serious as the violent offending, but considered it “relevant to the overall seriousness of Mr Kual’s conduct, as it further demonstrates the frequency and cumulative effect of Mr Kual’s repeat offending”.

44    In determining whether it was in the national interest to cancel Mr Kual’s visa, the Assistant Minister considered the seriousness of his criminal conduct having regard to the circumstances and nature of the conduct, the likelihood of him reoffending and the risk he posed to the Australian community if such a likelihood eventuated. The Assistant Minister concluded at paragraphs 60 to 62:

60.     I have noted the ART viewed Mr KUAL's violent crimes as 'very serious', as I do. However, where the ART accepts that while 'long and concerning', Mr KUAL's record 'does not include instances of real severity, and it is accompanied by evidence of a youth wasted in poor company, making poor judgments' (Attachment J), I have found that Mr KUAL's violent offending has been persistent. Therefore, I disagree with the ART and find that Mr KUAL's offending does include instances of real severity.

61.    I find it a matter of serious concern that Mr KUAL's acts of violence have escalated in seriousness. His most recent assault involved viciously kicking the victim in the head while the victim was on the ground trying to defend himself. As such, I concur with the Magistrate that Mr KUAL's criminal history demonstrates 'a propensity towards violence' Attachment B1.

62.     In conclusion, I find Mr KUAL's conduct in Australia to be very serious and give this consideration significant weight in favour of visa cancellation in the consideration of whether visa cancellation is in the national interest.

(emphasis added)

45    The applicant submitted that the Assistant Minister’s decision was based on illogical reasoning as the basis for the conclusion that Mr Kual’s offending included “instances of real severity” was that Mr Kual’s offending had been “persistent”. It was submitted that the severity of an offence refers to how serious it is, and the seriousness of an offence does not change regardless of how many times it has been committed. There was no logical connection between the premise and the conclusion, or the conclusion otherwise had no evidence to support it. It was submitted that this matter was highly material to the decision. The severity of the offending is a critical matter in working out the risks to the Australian community and balancing them against other considerations, including the best interests of children (in this case, Mr Kual’s three year old daughter).

46    Referring to paragraph 60 of the Assistant Minister’s decision, Mr Lang submitted that the “process of reasoning is to engage with the [Tribunal’s] reasons and to say where he disagrees with them and why”, however on its face, it did not outline how the Assistant Minister supported a finding of real severity. In paragraph 61, aside from the insertion of the word “viciously” (which, he said, was not found in the sentencing remarks), the reasons did not say anything about the level of severity reached for each of the offences, instead referring only to “escalating seriousness”. Mr Lang submitted that this “logical non-sequitur” went to the “heart of the territory” of the Assistant Minister’s reasons as to why cancellation was appropriate in this case.

47    In contrast to the Assistant Minister’s characterisation of severity, the applicant submitted that the offences did not involve domestic or family violence, none was an offence occasioning actual bodily harm, and in neither case did the sentencing remarks put Mr Kual in the high range of offending. For example:

(a)    The sentencing remarks to the aggravated robbery offence in 2019 stated that “the objective seriousness of the offence … is somewhere equidistant between the middle and the bottom of the range. There are far more serious matters of aggravated robbery involving corporal violence” (cited at paragraph 40 of the Assistant Minister’s decision).

(b)    The sentencing remarks to the affray offence in 2023 state that while the offence was a “very, very serious incidence of violence”, there were “others … perhaps behaving worse than he” and he was only responsible for his part, which was “shadow-boxing with the victim and …. carrying a wooden post over his shoulder in efforts to get away”.

48    The applicant’s criticism of the reasoning in the Assistant Minister’s reasons is that while he agrees with the Tribunal’s finding that the offences were serious, he did not identify any conduct that was different from what the Tribunal considered, or different evidence about that conduct. Each decision maker considered the available sentencing remarks. The Assistant Minister characterised the offending as “persistent” and “escalating in seriousness”. There was a “logical non-sequitur”, the applicant submitted, in the Assistant Minister’s contention in paragraph 99 that Mr Kual has “continued to engage in the same counterproductive conduct each time he has returned to the community …” (emphasis added) when the parties were in agreement that he had not done so on the last occasion. The Assistant Minister did not, it was submitted, take account of his most recent period after release which has not been marked by any violent or antisocial behaviour.

49    The respondent relied on the statutory scheme and purpose of s 501BA of the Migration Act, submitting that whether the applicant’s conduct was severe, or particularly severe, was a matter for the Assistant Minister to judge on an appraisal of the material before him. He was not bound to come to the same conclusion as the Tribunal, nor required to rebut those conclusions: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; 294 FCR 270 at [28]. The Assistant Minister’s conclusion at paragraph 60 must also be read in context of the decision as a whole, where he referred extensively to the applicant’s criminal record and other violent conduct resulting in convictions.

50    The respondent accepted that a “possible logical dilemma” arises in the last sentence of paragraph 60. If read literally, it appears as if the Assistant Minister relied on a finding of the persistence in violent offending as a justification for a finding that the offending included instances of real severity. However, when the reasons are read as a whole, including the references to the applicant’s criminal record and previous offences, it was submitted that it was sufficiently clear that the Assistant Minister concluded at paragraph 60 that the offending involved instances of real severity and that the offending was persistent. He said the severity element had been established in the consideration of the applicant’s offending, and the persistence element was a finding available on the evidence.

51    The respondent also submitted that the Court should be slow to find error in the decision by focusing on “looseness in the language” or “unhappy phrasing”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 approving Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287. Mr Johnson maintained that “without reading the reasons with an eye to error”, the Assistant Minister’s conclusion in paragraph 60 was evident in light of the full context of the reasons.

52    In reply, the applicant reiterated that reliance on the “escalating seriousness” as a justification for the conclusion of severity was illogical. Offences that may escalate in seriousness say nothing about the actual grade of their severity. Mr Lang noted that one of the offences concerned the attempt by Mr Kual to steal some baby formula, which was followed by an attack on the shopkeeper. He was at that point the sole carer for his child. But the sentencing remarks did not characterise the matter as colourfully, or as reflecting the gravity given to it by the Assistant Minister.

Ground 3(b) – factual error leading to assessment of risk of reoffending

53    Ground 3(b) is that the Assistant Minister proceeded on an incorrect basis that the applicant had committed crimes of a violent nature each time he had returned from prison, when in truth the applicant had not committed any violent crime since he was last released from prison.

54    In determining the risk to the Australian community, the Assistant Minister assessed the likelihood of Mr Kual reoffending in future, and the potential to cause significant physical and psychological harm to members of the community. Under the heading, “Rehabilitation”, the Assistant Minister found that:

99.     Mr KUAL has come before the courts a number of times and has been to prison several times. Mr KUAL has had multiple opportunities to draw from those lessons. Yet, Mr KUAL's criminal history indicates that he has continued to engage in the same counter-productive conduct each time he has returned to the community, abusing alcohol (and in more recent years, other drugs), as well as committing very similar crimes of a violent nature.

(emphasis added)

55    It was not in contest that the applicant had not committed any violent crime since he was last released from prison in January 2025, however, the respondent submitted that this ground relied on a misconstruction of the reasons at paragraph 99. Rather, the paragraph should be read as the Assistant Minister saying that, “each time the applicant was released from prison into the community he engaged in counter-productive conduct, some of which (not all of which necessarily) included instances of violence”. The words of the final sentence “as well as committing …”, indicated that the Assistant Minister was not saying he understood the applicant to have engaged in violent offending each time he was released from prison. This, it said, would be contrary to the Assistant Minister’s reference to “other offending” in 2025, as summarised at [43] above.

56    The applicant said that the Assistant Minister’s reasons suggested that Mr Kual’s incarceration had had no deterrent effect on his conduct of committing violent crimes. Mr Lang emphasised the words “he has engaged in the same counterproductive conduct each time he has returned to the community”, and submitted that the paragraph cannot be read as the applicant engaging in counterproductive conduct of one kind or another, but not necessarily on each occasion. The thrust of the paragraph was that Mr Kual’s bad behaviour had not changed, particularly as regards violent crimes. It was proposed that if the Assistant Minister had truly intended to say; while Mr Kual had not committed any violent crime since his release into the community, he still engaged in counterproductive conduct such as to warrant visa cancellation, then he would have said so in terms quite different from what was said. It would have been necessary to explain why the persistence of counterproductive, non-violent, conduct presented an unacceptable risk.

57    The applicant submitted that with no such reasoning, the statement that Mr Kual engaged in violent offending each time he was released into the community was “plainly a matter of considerable significance in assessing the risk that Mr Kual poses”. It was material to the Assistant Minister’s disagreement with the Tribunal’s finding that “the future risk of reoffending is not of a kind that makes it unacceptable” (see paragraph 50 of the Tribunal Decision cited at paragraph 95 of the Assistant Minister’s decision). While the Assistant Minister was not required to comply with the Direction, he still disagreed with the conclusion, stating he could not “reach the same conclusion as the [Tribunal] in this respect”.

58    In relation to this ground, the respondent took the Court to a number of paragraphs of the reasons for decision including paragraphs 58-60 where the Assistant Minister made the relevant characterisations of the applicant’s offending as “instances of real severity”, “persistence”, and “vicious” and submitted that there was “without reading the reasons with an eye to error … justification within those conclusions for the conclusions reached”. It was submitted that it was not a factual error to use “general language” such as in paragraph 99 and refer to his criminal history as demonstrating “the same counterproductive conduct” when he returned to the community. The respondent submitted that this was a focus on the counterproductivity, not equally serious counterproductive conduct.

59    In reply, Mr Lang contended that an acceptance by the respondent that the applicant had not committed any violent crime since his last release could ground an argument that nonetheless he posed an unacceptable risk to the Australian community, but not in the absence of reasoning to that effect, of which there was none.

Ground 3(c) – identification of Australian community expectations

60    Ground 3(c) is that the Assistant Minister erred in failing adequately to identify the expectations of the Australian community.

61    At paragraphs 126 ff under the heading “Expectations of the Australian community”, the decision stated:

126.     The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

127.     In particular, I consider that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct.

128.    The Government's view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

…

130.     However, in my view, this consideration, as it relates to the national interest, is about what the Australian community expects as a norm, rather than how the community might weigh up the specific circumstances of an individual non-citizen. Nevertheless, I have considered Mr KUAL's specific circumstances, to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons.

(emphasis added)

62    It is useful to turn to Ministerial Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110) although I note that the Assistant Minister is not bound by Direction 110 under s 499 of the Migration Act.

63    Paragraph 126 of the Assistant Minister’s decision includes part of paragraph 8.5(1) of Direction 110. In 8.5(2), it states that the Australian community expects the Australian Government can and should cancel a non-citizen’s visa if they raise serious character concerns through conduct of the following kind:

a)     acts of family violence; or

b)     causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d)     commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e)     involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f)     worker exploitation.

64    The applicant submitted that the Assistant Minister’s decision did not intelligibly identify what the expectations of the Australian community are. The reference to “certain kinds of conduct” at paragraph 127 did not identify what that conduct was, nor was the answer self-evident given the nuances concerning gravity and kind of offences. This is particularly the case where the Australian community may also expect that the Government would not separate children from their parents in the absence of a sufficiently grave reason to do so.

65    The applicant submitted that if the Assistant Minister were applying paragraph 8.5 of Direction 110, it would be necessary to identify which expectations it was applying and examine how Mr Kual’s circumstances fit into that norm. As noted above, and as confirmed by Mr Lang at the hearing, none of Mr Kual’s offences involved family violence, crimes against women, children or vulnerable people, none were offences occasioning actual bodily harm, and in each case the sentencing remarks did not put Mr Kual in the high range of offending. Nor did the respondent submit that any of Mr Kual’s conduct came within the particular categories of conduct outlined in paragraph 8.5(2).

66    The respondent raised two submissions in response; First, that there was no ambiguity by reference to “certain kinds of conduct”. It was clear that the Assistant Minister had found that the applicant raised serious character concerns because he had engaged in the conduct outlined in the reasons. Second, while not bound by Direction 110, the Assistant Minister was clearly adopting consideration of the Australian community’s expectations by reference to the norm stipulated in that direction. The respondent said that paragraph 130 of the decision “picks up the norm” described in paragraph 126, and so the decision did not deal with how the community might weigh up the specific circumstances of an individual non-citizen, but instead referenced the “norm” expressed in Direction 110.

67    Mr Johnson relied on BJKY v Minister for Immigration [2024] FCA 1495 (Anderson J) to submit that the Assistant Minister was entitled to conceptualise “community expectations” with reference to Direction 110. In that case, the applicant challenged the Minister’s decision based on an inflexible approach to determining community expectations, submitting that the Minister applied Ministerial Direction No 99 in circumstances where he was not required to confine his consideration in this way (at [38]). His Honour found at [40] that the reference to the direction was “hardly surprising” given the Minister was the author of it. While the Assistant Minister was not the author of Direction 110, it was submitted here that he was entitled to engage with the matters set out in the direction. The respondent also relied on FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 (Flick, Charlesworth and Stewart JJ) to support the contention that consideration of the expectations of the Australian community is not an invitation for the decision maker to decide what it thinks the community might expect in a particular case, but to apply the norm.

68    Mr Johnson submitted that paragraph 126 was a statement of the Assistant Minister as to what is the norm, and paragraph 130 set out how the circumstances were not necessarily how the community may view the individual circumstances of the applicant, but the expectations of the community as a norm.

69    In reply, the applicant said that those two submissions were at odds with each other. The first submission says that the Assistant Minister was applying Direction 110 in his finding that Mr Kual raised “serious character concerns through conduct” of the kind explained in the reasons – this language appearing in both paragraph 8.5(2) of Direction 110 and paragraph 127 of the decision. However, there was no attempt to analyse how Mr Kual’s conduct fit into that norm, and looking at the factors set out in paragraph 8.5(2), it appears that it does not.

70    The second submission that the Assistant Minister was taking into account the community’s expectations as a norm, rather than the specific circumstances of Mr Kual, also did not assist. To say that the Australian community expects that the Government can and should cancel a visa if the holder engages in the conduct in which the applicant engaged, is not an expression of the norm. It was not, as was submitted by the respondent, clear that the Assistant Minister was adopting consideration of the community’s expectations by reference to the norm stipulated in Direction 110. The decision did not contain any reasoning as to whether the applicant’s conduct fell into any of the categories in paragraph 8.5(2) of Direction 110.

71    The respondent also submitted that although the Assistant Minister did not consider the community’s expectations by reference to the applicant’s particular circumstances, it nevertheless took this into account, including the best interests of his daughter, citing paragraphs 140-148 of the decision. The applicant responded that while the question of his daughter’s best interests were addressed, it was considered separately from the question of whether the community would expect that the government would not, in effect, separate parents from their children in the absence of a sufficiently grave reason to do so. The cited paragraphs refer to the relationship between Mr Kual and his daughter, the role that he played in her life, the role of her grandparents in caring for her, and Mr Kual’s concerns should they be separated. These paragraphs did focus on the particular circumstances of Mr Kual and his daughter, but there is no apparent link between this and the expectations of the Australian community.

72    In reply, Mr Lang submitted that paragraph 130, as relied on by the respondent, referred back to paragraph 129, where the Assistant Minister had regard to Mr Kual’s submission that the Australian community would “feel guilt and be mentally affected if he were removed from Australia knowing that he has a young family here”. Mr Lang submitted that paragraph 126 did nothing to import a definition of seriousness from Direction 110, nor did it apply that definition to Mr Kual’s case. The Assistant Minister did not, for example, say that he determined the community expectations by determining the political will; instead, he regarded Mr Kual’s submission as relating only to his personal circumstances.

Determination

73    I have here sought to deal with the three sub-grounds together. Essentially, they each arise out of the way in which the Assistant Minister sought to characterise the applicant’s offending, and the reasoning process by which he reached the conclusion that Mr Kual’s visa should be cancelled. Where reasons are given for the exercise of a power, the intelligible justification for that exercise must, at least ordinarily, be found to lie within those reasons; see Singh at [47], cited in SSVJ appeal at [37].

74    I have already set out the grounds upon which jurisdictional error may arise by reference to [91] of XKTK at [13] above of these reasons. As noted by the High Court in LPDT at [3], jurisdictional error can include: misunderstanding the applicable law, asking the wrong question, exceeding the bounds of reasonableness, identifying a wrong issue, ignoring relevant material, relying on irrelevant material, and in some cases, making an erroneous finding or reaching a mistaken conclusion. There is little if any use in looking for cases where similar factual circumstances arise and using those facts and the findings made upon them as bases for a critique of a particular decision. Here, the exercise is to have regard to the reasons given, and determine whether the chain of reasoning is such as to demonstrate jurisdictional error.

75    In the Assistant Minister’s reasons for decision, there are a number of findings which fall under these headings. The first is the conflation of the offending by the applicant which, it was common ground, was serious, with “persistent” offending. As submitted by the applicant, persistence does not result in increased severity. The Assistant Minister did not explain how repeated offences resulted in “real severity” because it was found that they were “persistent” (see paragraph 60). There was no explanation or discussion of why that conclusion was reasonable, or as to how that decision was reached. In particular, he did not explain how he reached that qualitative view of the applicant’s offending.

76    Secondly, the characterisation of the offending as “vicious”. This word is repeated in paragraphs 29 and 61. While the Magistrate referred to the assault as “serious” and made an assessment of the applicant’s “propensity towards violence”, the offence was associated with alcohol use and possibly in response to a racial slur against the applicant (see transcript of sentencing before Magistrate (now Judge) Breton on 3 May 2023 – attachment B1 to the Assistant Minister’s decision). There was no indication of how the Assistant Minister was able to read into the sentencing remarks the adjective of “vicious” given that the sentencing remarks did not do so.

77    The Assistant Minister was entitled to disagree with the Tribunal’s findings, and to revoke the previous decision as to the applicant’s visa. However, he was required to demonstrate the reasoning process by which he reached that state of disagreement, and not merely “concentrate on the outcome of that exercise” (see XKTK at [93], citing Singh at [47]). The focus is on whether the Assistant Minister’s decision-making process discloses an intelligible justification for the exercise of the power.

78    Here, the Assistant Minister has made a number of assumptions about the offending which do not appear to be available on the evidence, or at the very least are not explained as being reached on available evidence. In particular, in this category is the imposition of the concept of viciousness; as submitted by the applicant, no such mention was made in the sentencing remarks and in a number of other matters, the applicant’s criminality was adjudged to be at a lower or intermediate level (cf LPDT, where the characterisation of the appellant’s conduct as “very serious” was in the absence of any reasoning as to how offending which did not reach the requisite level of the relevant Direction came to be so described). If it is not possible to comprehend how the decision maker reached the relevant finding, there is no rational basis for the finding.

79    The Assistant Minister’s finding that the applicant engaged in the “same counter-productive conduct each time he has returned to the community, abusing alcohol (and in more recent years, other drugs), as well as committing very similar crimes of a violent nature” is not available on the evidence. While it is true that the applicant has offended on a number of occasions while on probation or on notice of serious impacts on his visa status, he did not offend on his last release, and indeed his most recent offence was a shoplifting offence. I do not downplay the seriousness of any criminal conduct, but the criminal history does not line up with the Assistant Minister’s characterisation of it. An error of fact on an important matter may amount to jurisdictional error; see SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [51]-[56] (Besanko J).

80    Finally, the Assistant Minister did not satisfactorily identify the “certain kinds of conduct” which the Australian Community would expect would result in cancellation. The Assistant Minister placed “significant weight” on this expectation. While one may infer that the Assistant Minister was referring to paragraph 8.5(2) of Direction 110, it was common ground that the conduct of the applicant did not fall within any of those categories.

81    I set out the relevant paragraphs of the decision at [61] above. A number of queries arise from paragraphs 126-128; firstly, a call-out to Direction 110 is not relevant where, as here, the applicant does not fall into the sub-paragraph 8.5(2) categories. Secondly, an arch reference to “certain kinds of conduct” must be explained; if the Assistant Minister is referring to vicious or persistent conduct of a lesser kind, or escalating conduct leading to a determination of severity, then that needs to be found after a process of reasoning. It is not sufficient to refer to the norm set out in Direction 110 without demonstrating how, in the reasoning process, that is relevant to this particular decision.

82    Given the number of illogicalities and conclusions with a lack of reasonable explanation, as well as the factual error as to the “same counterproductive conduct”, I find that the Assistant Minister committed jurisdictional error. Of course it is not for a Court of review to determine how the Assistant Minister should have determined this matter, and so the decision should be set aside.

83    As discussed at [50] in the SSVJ appeal, in a case of a finding of irrationality leading to jurisdictional error, a finding of materiality may not be necessary, as an illogical decision must incorporate material errors. If it is necessary to decide, there is a possibility, which is not improbable, that the decision as to the cancellation of the applicant’s visa could have been different if the errors had not occurred. This is the threshold of materiality specified in LPDT at [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ).

84    The appropriate order is for a writ of certiorari quashing the decision, and an order that the applicant’s costs be paid by the respondent.

85    The applicant does not seek an order of mandamus, citing Perram J in SSVJ.

Associate:

Dated:    7 July 2026