Federal Court of Australia

Kim v Assistant Minister for Immigration [2026] FCA 1020

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to quash the decision of the Respondent made under s 501A(2) of the Migration Act 1958 (Cth) on 3 July 2025 setting aside the decision of the Administrative Appeals Tribunal made on 12 July 2023 and cancelling the Applicant’s BB Subclass 155 Five Year Resident Return visa.

2.    The Respondent pay the Applicant’s costs.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By originating application dated 27 February 2026, the applicant seeks judicial review of a decision of the Assistant Minister for Immigration (Assistant Minister) made under s 501A(2) of the Migration Act 1958 (Cth) (Act) on 3 July 2025, setting aside the decision of the Administrative Appeals Tribunal (Tribunal) made on 12 July 2023 and cancelling the applicant’s BB Subclass 155 Five Year Resident Return visa.

2    The application is made under section 476A(1)(c) of the Act. By s 477A(1), the application was required to be made within 35 days of the date of the migration decision which, by ss 477A(3) and 477(3)(c), is the date of the written notice of the decision. The Assistant Minister accepts that the applicant was given written notice of the decision on 12 February 2026 (on which date the applicant was detained and taken into immigration detention). Accordingly, the application is brought within time.

3    Section 476A(1)(c) of the Act gives the Court jurisdiction to review the decision of the Minister and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Accordingly, review by this Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Consistently with that limitation, the relief sought by the applicant is a writ of certiorari quashing the decision of the Minister.

4    The originating application states two grounds of review.

5    By ground 1, the applicant alleges that the decision was ultra vires as the power under s 501A(2) of the Act was conditioned on a requirement that it be exercised within a reasonable time and a reasonable time had expired in the circumstances of this case. Following the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v XMBQ (2026) 315 FCR 207, the applicant informed the Court that he no longer presses ground 1.

6    By ground 2, the applicant alleges that the decision was vitiated by jurisdictional error because the Assistant Minister exercised his power under s 501A(2) of the Act unreasonably or, in making his decision, did so based on illogical or irrational findings. Although stated as a single ground of review, the particulars to the ground and the applicant’s submission made clear that the ground comprised two distinct grounds of review.

7    The first of those grounds (which will be referred to as ground 2A) is an allegation that the applicant was not notified of the Assistant Minister’s intention to consider exercising the power under s 501A(2) and, as a result, was not afforded an opportunity to provide updated information to the Assistant Minister. Although ground 2 alleges that the decision was legally unreasonable, illogical or irrational, during the course of oral argument the applicant acknowledged that the alleged jurisdictional error arose from the failure to afford the applicant procedural fairness. Counsel for the Assistant Minister agreed that the Court should determine the ground on that basis. It is common ground that, in making the decision, the Assistant Minister was required to afford the applicant procedural fairness. The applicant contends that the Assistant Minister made the decision on the basis that the applicant had been afforded procedural fairness, but the circumstances were that a notice of intention to consider cancellation had not been received by the applicant and the applicant therefore did not have an opportunity to be heard in relation to the decision. The Assistant Minister sent notice of the intention to consider the cancellation to two addresses associated with the applicant, but the applicant has given unchallenged evidence that he did not receive the notices. The applicant contends that the steps taken by the Assistant Minister were insufficient to satisfy the requirements of procedural fairness.

8    The second of the grounds (which will be referred to as ground 2B) is an allegation that, apart from questions of procedural fairness, the Assistant Minister made legally unreasonable or illogical or irrational findings concerning the applicant’s rehabilitation and the associated risk of reoffending he posed having regard to the material that was before the Assistant Minister.

9    In support of his application, the applicant made and relied upon two affidavits dated 27 February 2026 and 6 May 2026. The applicant also relied upon an affidavit of Mr Ziaullah Zarifi, his solicitor, dated 6 May 2026. The deponents were not cross-examined, and the Assistant Minister did not object to any of the applicant’s evidence.

10    The Assistant Minister provided an application book that included relevant pages from the applicant’s file with the Department of Home Affairs (Department), a copy of the decision of the Assistant Minister, and copies of the materials that were before the Assistant Minister, including a copy of the Tribunal’s decision. The Assistant Minister also tendered a copy of the Procedural Instruction of the Department titled ‘Notification Requirements’. The applicant made no objection to the Assistant Minister’s evidence.

11    One page of the application book was a screen shot showing multiple pages of the Department’s Integrated Client Service Environment (ICSE) database. The multiple pages overlapped with each other such that it was not possible to view each of the relevant pages. At the hearing, I requested the Assistant Minister to provide unobscured copies of the pages shown on the screen shot. On 22 June 2026, the Assistant Minister provided a further series of screenshots from the ICSE database as at that date. However, the information conveyed by those pages was not self-evident. I therefore invited the parties to provide the Court with a further submission explaining the document. On 29 June 2026, the Assistant Minister filed an aide-memoire explaining the further pages. On the same day, the applicant’s solicitors informed the Court by email that the aide-memoire was agreed by the applicant and asked the Court to receive the aide-memoire as a joint submission on behalf of the parties. I will therefore treat the further series of screenshots provided to the Court on 22 June 2026 as evidence in the proceeding and the aide-memoire provided on 29 June 2026 as a joint submission from both parties.

12    For the reasons that follow, I find that the Assistant Minister failed to afford the applicant procedural fairness in the exercise of the power under s 501A(2) of the Act. The decision must therefore be set aside. I reject the applicant’s further contention that the Assistant Minister’s findings concerning rehabilitation and risk of reoffending were legally unreasonable, illogical or irrational.

Factual background

13    The applicant was born on 30 December 1979 in Cambodia. On 25 August 1999, he was granted a Class BB Subclass 155 Resident Return visa.

14    The applicant has a lengthy history of criminal offending in Australia. His convictions began when he had not yet turned 18 years old, and his adult convictions spanned some 23 years, from August 1998 to July 2021. As found by the Tribunal, his criminal history includes violent offences and drug, armed robbery and possession of pistol offences, in addition to other property, dishonesty, COVID administration and driving offences.

15    On 24 May 2005, the Department notified the applicant that his visa may be liable for cancellation under s 501 of the Act on character grounds. However, on 1 September 2005, a delegate of the Minister decided not to exercise the discretion under s 501(2) to cancel the applicant’s visa. On 7 September 2005, the Department notified the applicant of that decision but issued a warning that conviction of any further offences would result in further consideration of cancellation.

16    Following further offending, on 12 October 2011 the Department again notified the applicant that his visa may be liable for cancellation under s 501 of the Act on character grounds. However, a Delegate of the Minister again decided not to exercise the discretion to cancel the applicant’s visa. On 29 March 2012, the Department notified the applicant of that decision and issued a second warning that conviction of any further offences would result in reconsideration of cancellation.

17    On 14 December 2017, the applicant was convicted and sentenced to a term of 2 years imprisonment by the District Court of New South Wales for supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

Original decision of a delegate

18    On 25 November 2021, a delegate of the Minister decided to cancel the applicant’s visa under s 501(2) of the Act (original decision). The delegate found that, as a result of his conviction and sentence on 14 December 2017, the applicant did not pass the character test.

19    The applicant applied to the Tribunal for review of the original decision. He was represented by his present solicitor, Mr Zarifi.

20    In his affidavit, Mr Zarifi deposed that, on 28 May 2023, he caused a tender bundle to be lodged with the Tribunal in support of the applicant’s revocation application and that certain of the documents in the bundle recorded the applicant’s personal contact details. Mr Zarifi exhibited the following documents from that tender bundle:

(a)    a letter of referral from Dr Kim Ong to Jeffrey Och (Southern Cross Psychological Services) dated 29 April 2023 which lists the applicant’s address as 22 Mannix Street, Bonnyrigg Heights and also lists a mobile number; and

(b)    several emails from an organisation called SMART Recovery to the applicant, recording online attendance at meetings and which identify an email address for the applicant (being a gmail account).

21    The effect of Mr Zarifi’s evidence is very limited. The personal contact details of the applicant were recorded in isolated documents within a tender bundle. Further, and more significantly, neither the applicant nor Mr Zarifi gave evidence that the mobile number or email account recorded in those documents were correct as at the time of the Tribunal hearing or remained current in mid-2025. Indeed, the parties identified a mobile number in the Department’s ICSE database (referred to below) as the applicant’s mobile number, and that number differed (by one digit) from the number shown on the letter of referral. It follows that the number shown on the letter of referral was incorrect. The address shown on the letter of referral was also incorrect. In his affidavit dated 27 February 2026, the applicant deposed that 22 Mannix Street, Bonnyrigg Heights is the address of one of his sisters and he did not reside at that address in 2025. The applicant deposed that, in 2025, he lived with his mother at her address at 7 Barilla Place, Bonnyrigg Heights.

Tribunal decision

22    The Tribunal conducted a hearing of the revocation application on 29 and 30 June 2023. Mr Kim’s affidavit dated 27 February 2026 exhibited a Supplementary Tender Bundle lodged with the Tribunal on 23 June 2023. The bundle included a report of Dr Emily Kwok (a clinical and forensic psychologist) dated 18 June 2023. Dr Kwok also testified at the Tribunal hearing. Her evidence was to the effect that the applicant had suffered from substance use disorder which had contributed to his offending, but that his substance use was in remission and that he had been receiving monthly buprenorphine injections and counselling. Dr Kwok expressed the opinion that the applicant’s risk of reoffending was low and would be further reduced if he remained engaged in and responded to his treatment.

23    On 12 July 2023, the Tribunal decided to set aside the original decision and substitute it with a decision not to exercise the discretion in s 501(2) to cancel the applicant’s visa. It delivered written reasons on 28 July 2023. In its reasons, the Tribunal summarised the evidence adduced at the hearing. Relevantly, the Tribunal’s reasons summarised Dr Kwok’s evidence as follows (emphasis in original, citations omitted):

58.    The Tribunal had the benefit of both Dr Kwok’s report and her oral testimony, in addition to more historic expert reports about Mr Kim in the material.

59.    While Dr Kwok acknowledged the limitations inherent in her choice of tests as applied to Mr Kim, the Tribunal noted her diagnosis of Mr Kim as suffering from a substance use disorder as well as a major depressive disorder with anxiety distress as well as her observations about the changes in his family support structure and its emergence as a dynamic risk management factor:

‘Although there was inadequate family support throughout Mr Kim’s childhood and adolescence, I note that this had changed after his younger siblings grew up and became independent. In other words, his siblings are now in a position where they can provide support. I acknowledge that Mr Kim could have reached out to his family, or his siblings, for help much earlier. Regardless, I accept that Mr Kim has now opened up to his family about his problems, and family support is now intact and available for him.’

60.     It is useful to note her findings in her conclusion:

•    ‘Mr Kim in sustained remission of Opioid Use Disorder, but continues to suffer Major Depressive Disorder with anxious distress. He currently attends counselling on a weekly/fortnightly basis, in addition to online recovery groups. He also receives monthly buprenorphine injections to treat substance abuse.

•    Treatment for Mr Kim’s condition is available in the urban areas of Cambodia and mostly likely through non-government (sic) organisations. To my understanding, Mr Kim would be living in a rural area of Cambodia.

•    If Mr Kim was forced to return to Cambodia, it is unlikely that he would have capacity to function in day-to-day living. Subsequently, he would likely relapse to substance abuse and other problematic behaviours.

•    Substance Use Disorder (Opioid Use Disorder) had previously contributed to Mr Kim’s criminal offending.’

24    Under the topic of “the likelihood of the non-citizen engaging in further criminal or other serious conduct” (para 8.1.2(2)(b) of Direction No 99), the Tribunal made the following findings, incorporating aspects of Dr Kwok’s evidence:

142.     The Tribunal has considered the relevant evidence below:

a)    Punishment and deterrence: While the arguments based on Mr Kim’s prior warnings are valid and demonstrate an apparent inability to learn from punishment, Dr Kwok’s oral testimony in cross-examination added some nuance:

Ms Zinn: In circumstances where Mr Kim has already been afforded (indistinct) opportunities to rehabilitate, how can you reconcile this past conduct of ignoring these warnings to your assessment that he is at a low - that he faces a low risk of reoffending in the future?

Dr Kwok: Yes, I had questioned Mr Kim on that in the interview. In particular, I noted to him that he has received several warnings in the past, and how he can explain the reoffending. And at the time, Mr Kim had explained that he was on drugs; he wasn’t thinking. When you are on drugs, you don’t consider all of that; you don’t worry about anything else. And those answers - although we understand, as part of the causes of his reoffending and his lack of consideration of the consequences - are consistent with the - his responses would be consistent with a diagnosis of severe substance use disorder, where, despite the social consequences, a person - an individual - is unable to stop those behaviours, to get the drugs and to use the drugs. And so, at that time, I would understand that Mr Kim was - had a severe substance use disorder that contributed to - - -

Ms Zinn: Yes?

Dr Kwok: - - - the reoffending.

Ms Zinn: Sorry, Dr Kwok; could I ask you just to repeat that last sentence. It just cut out there as you were talking?

Dr Kwok: Yes. So, at the time, Mr Kim had a severe substance use disorder, which had contributed to the reoffending.

b)    Drug abuse: It is clear from a close review of the evidence and the oral testimony that Mr Kim’s drug abuse, diagnosed by Dr Kwok as a substance use disorder, is a key driver in his offending. It is also clear from Mr Kim’s current period of remission and his monthly buprenorphine injection that the latter are significant support factors that inhibit or prevent him from substance use and consequently the risk of subsequent offending…

…

f)     Risk Assessment: Giving due regard to the available expert evidence, Dr Kwok reported that in her opinion Mr Kim is ‘currently a low risk to the Australian community in terms of his criminal offending and general behaviours.’ The Tribunal has read Mr Watson-Munro’s 31 January 2012 report but notes that it does not contain a specific assessment of recidivism risk.

25    The Tribunal ultimately found (at [151] and [154]) that there is ‘a risk’ or a likelihood that the applicant will engage in further criminal or other serious conduct but that the risk to the Australian community is low, given the effect of current static and dynamic risk management factors in his life.

26    The Tribunal determined that it should not exercise the discretion under section 501(2) of the Act to cancel the applicant’s visa and set aside the delegate’s decision (at [264]-[265]).

Further offence

27    On 8 November 2023, the applicant was convicted in the NSW Local Court of ‘possess prohibited drug’, for which he received a fine of $300.

Assistant Minister’s decision

28    On 9 September 2024, the Assistant Minister indicated to officers within his Department that he “wished to consider cancellation [of the applicant’s visa] under s 501A(2)(b) with natural justice in this case”.

29    At the relevant time, s 501A of the Act relevantly provided as follows:

501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)     This section applies if:

(a)     a delegate of the Minister; or

(b)     the ART;

makes a decision (the original decision):

(c)     not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)     not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or the ART that the person passes the character test and whether or not the delegate or the ART reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)     The Minister may set aside the original decision and:

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

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

if:

(c)     the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)     the person does not satisfy the Minister that the person passes the character test; and

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

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

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

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

if:

(c)     the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

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

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

…

Minister’s exercise of power

(5)     The power under subsection (2) or (3) may only be exercised by the Minister personally.

…

30    It is uncontroversial that, unlike the power available to the Minister under s 501A(3), it is an implied condition of the exercise of the power under s 501A(2) that the person whose visa is being cancelled is afforded procedural fairness, which includes the affected person having an opportunity to make representations prior to a decision being made: CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62 at [78] and [117] (Griffiths J).

ICSE database

31    The Department holds current and historical information about visa holders and applicants (referred to as “clients”) in its ICSE database. This includes residential addresses, postal addresses, phone numbers and email addresses, where available.

32    In November 2024 (when a first notice of intention to consider cancellation of his visa was sent to the applicant), the information recorded in the ICSE database for the applicant’s contact details were as follows:

(a)    The applicant’s residential address was given as 7 Barilla Place, Bonnyrigg Heights NSW (the Barilla Place address). Screenshots taken from the ICSE database indicate that the applicant’s ‘Home’ contact address was updated on 17 June 2024 to the Barilla Place address. The ‘Source’ of the information is identified as ‘Client Advised’. The applicant deposed that that, in November 2024, he was living at that address which was his mother’s house.

(b)    The ICSE database included two mobile phone numbers for the applicant, one designated as ‘home’ and the other as ‘mobile’. The applicant deposed that he did not recognise the number designated as ‘home’. However, the parties jointly submitted that the number designated as ‘mobile’ is the applicant’s current number (and, I infer, was the applicant’s current number as at 12 November 2024 and all times subsequently).

(c)    The ICSE database also included an email address for the applicant, which was a Yahoo address. The applicant deposed that the email address belonged to his sister.

33    The ICSE database also contained historical contact details. Relevantly, the database recorded 22 Mannix Street, Bonnyrigg Heights NSW (the Mannix Street address) as the applicant’s residential address at various points in time, the earliest being 19 December 2017.

34    Some of the above information in the ICSE database is consistent with, and likely sourced from, a “Personal Circumstances Form” completed and signed by the applicant on 23 December 2019. The document was provided by the applicant to the Department in connection with the original decision. In the Personal Circumstances Form, the applicant provided:

(a)    a mobile phone number which is the number designated as ‘home’ in the ICSE database (and which the applicant deposed that he did not recognise);

(b)    the Yahoo email address of his sister; and

(c)    Mannix Street address as his then current residential address.

Notices of intention to consider cancellation

35    On around 12 November 2024 and 4 March 2025, the Department of Home Affairs issued notices addressed to the applicant to notify him of the Assistant Minister’s intention to consider setting aside the Tribunal’s decision and to cancel his visa under s 501A(2) of the Act. Each notice explained the relevant statutory power and the relevant considerations and materials before the Assistant Minister, and invited the applicant to comment on those matters within 28 days after the notice was taken to have been received by the applicant. Each notice further stated that, as it had been posted to an Australian address, the applicant was taken to have received it seven working days after the date of the notice.

36    The first notice, dated 12 November 2024, was sent to the Barilla Place address by registered post. The Department’s records indicate that the first notice was not received at the Barilla Place address and was held at the Bonnyrigg Post Office from 15 November 2024 to 5 December 2024, on which date it was “returned to sender”. The first notice was delivered back to the Department on 10 December 2024. As noted earlier, the applicant deposed that, in November 2024, he lived at the Barilla Place address with his mother. However, he deposed that he did not receive the first notice.

37    It appears that a Department officer sought contact details for the applicant from the Chief Executive of Centrelink. On 18 February 2025, the Department received a report from Services Australia that included its records relating to the applicant’s current and historical residential address. The information provided in the report included the following:

(a)    the Mannix Street address was listed as the applicant’s current residential address with a “Start Date” of 19 December 2017; and

(b)    the Barilla Place address was listed as the applicant’s historical residential address between 22 December 2004 and 6 December 2007 and from 1 May 2012.

38    The second notice, dated 4 March 2025, was sent to the Mannix Street address by registered post. A screenshot of the Australia Post tracking information stated that the second notice was delivered on 7 March 2025 at 12:44 pm. The screenshot included a delivery note which stated “We’ll need a signature for this one. The sender requires a signature on delivery, so we won’t be able to leave this parcel. If nobody’s home, we’ll take it to a local Post Office for collection”. The screenshot shows that the “latest” status of the letter was that it was “Delivered”, which was in green writing next to a green tick. At the bottom of the screenshot was a drop-down box titled “Details”. This box was not expanded and there were no other documents in evidence that indicated what relevant information (if any) would have been included in the “Details” drop-down box.

39    As noted earlier, the applicant deposed that the Mannix Street address is the address of one of his sisters and he did not live at the address in 2025. He further deposed that:

I do not recall receiving a notice dated 4 March 2025 from the Department and, prior to being shown it by my solicitors, had not seen the letter I refer to at paragraph 10 above [being the 4 March 2025 notice].

If I had have received the notice in March 2025 or if I had have known my visa was going to be cancelled, I would have sought assistance from my solicitors at Zarifi Lawyers to respond to the Department.

40    From the Australia Post tracking information screenshot, I infer that the second notice, which was addressed to the applicant, was delivered to the Mannix Street address and that someone at that address signed for it. I also infer, from the fact that the applicant’s sister lived at the Mannix Street address, that the person who signed for the second notice knew the applicant personally. However, the evidence did not reveal what information was received by the Department with respect to that signature. In the absence of evidence, I infer that the Department would have learned that the second notice was signed for, but that it was not signed for by the applicant.

41    The applicant did not respond to either notice.

42    On 10 June 2025, the Assistant Minister received a submission from the Department concerning the cancellation of the applicant’s visa under s 501A(2)(b) of the Act. With respect to service of a notice of intention to consider cancellation, and whether natural justice had been afforded, the submission recorded the following statements:

On 4 March 2025, Mr KIM was sent a Notice of intention to consider setting aside the decision of the AAT and cancelling a visa under s501A(2) of the Migration Act 1958 to an address that was obtained from Centrelink; as Mr KIM was in receipt of welfare payment. Australia Post tracking indicates that the notification package was delivered and signed for on 7 March 2025. To date, Mr KIM has not replied to the Department of Home Affairs (the Department).

43    The submission also included several attachments, including a “decision page”, a draft statement of reasons, and a lengthy bundle of relevant material.

44    The Assistant Minister agreed with the statement of reasons by signing on the final page. The Assistant Minister made no amendments to the statement of reasons.

Assistant Minister’s statement of reasons

45    The applicant challenges the Assistant Minister’s statement of reasons concerning the applicant’s rehabilitation and the associated risk of reoffending he posed. Those reasons were as follows (emphasis in original):

Risk to the Australian community

31.     Having regard to Mr KIMS'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, psychological and/or financial harm to members of the Australian community.

32.     In assessing the likelihood of Mr KIM reoffending in the future, I have considered the available information as to matters that may have contributed to Mr KIM's past conduct, as well as indications of remorse and the extent of Mr KIM's rehabilitation.

(a)     Factors contributing to past conduct

33.     I have taken into account Mr KIM's history of ongoing substance abuse, which has included using heroin and methylamphetamine. I accept that Mr KIM's drug use has likely been a primary driving factor in his offending, as has consistently been recognised by the courts, the AAT, and Mr KIM's own representations Attachments A, B, Bl, B2, B3, B4, G1 and J.

(b)     Remorse and rehabilitation

34.    I note that Mr KIM provided evidence to the AAT in June 2023 that he had been in "sustained drug remission for several years" such that he was "unlikely to reoffend". During that proceeding, Mr KIM made statements that he had made various attempts at addressing his substance abuse. For example, Mr KIM:

•    attended drug and alcohol counselling in 2004;

•    received a Naltrexone implant in 2005;

•    and completed the Getting SMART (Self-Management and Recovery Treatment) program in 2009 Attachment J.

35.    I consider these statements do not accord with Mr KIM's convictions since 2017 (outlined below), which demonstrate a pattern of recent and/or recidivist offending with respect to drugs Attachment A:

a.     14 December 2017: Supply prohibited drug >indict. quantity (not cannabis).

b.     14 August 2018: Possess prohibited drug.

c.     14 October 2020: Possess prohibited drug.

d.     19 May 2021: Possess prohibited drug.

e.     8 November 2023: Possess prohibited drug.

36.     I note in particular that Mr KIM's conviction of 8 November 2023 occurred after the AAT's decision of 12 July 2023 Attachments A and J.

37.     I have also taken into account a breach of parole report, dated 9 August 2018, which indicated that Mr KIM had breached his parole order, dated 14 December 2017, due to his arrest on 29 July 2018 for Possess prohibited drug and that he also failed to report as required. The report identified Mr KIM as being a "medium risk offender with several criminogenic needs" and recorded his compliance with parole supervision to be "unsatisfactory". He also failed to report to Community Corrections in February 2021 in breach of his Community Correction Order Attachment J.

38.     I consider that Mr KIM presents an ongoing risk of reoffending because:

•    He is presently 45 years of age and has an extensive criminal record. Given his age, he cannot attribute his offending to a lack of maturity;

•    He was formally warned about the consequences of further offending on two separate occasions (in 2005 and 2011) and yet ignored those warnings.

•    His extensive criminal record and previous warnings do not demonstrate a likelihood that he will rehabilitate, and to the contrary, support an ongoing risk of recidivism.

•    After being issued with the Notice of intention to consider setting aside the AAT decision to cancel his visa on 15 June 2019 Attachment G, Mr KIM proceeded to reoffend, which indicates an unacceptable disregard for the consequences of his offending on his migration status. He was aware that his migration status was under active consideration by the Department yet continued to engage in criminal conduct;

•    His longstanding drug addiction and unsuccessful attempts at rehabilitation suggest that rehabilitation is highly unlikely.

39.     I find that the available information indicates Mr KIM has historically failed to rehabilitate and abstain from criminal conduct, particularly with regard to drug use, despite his efforts toward rehabilitation and the efforts of the justice system to intervene. I am not satisfied that Mr KIM has rehabilitated to a degree that he presents a negligible likelihood of reoffending and I therefore consider that there is an ongoing risk that Mr KIM will re-offend.

Conclusion on risk to community

40.     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.

41.     I have found that the nature of Mr KIM's conduct is very serious. I have further found that Mr KIM's inability to rehabilitate and tendency to reoffend demonstrate that he has the potential to cause further serious physical, psychological and/or financial harm to members of the Australian community.

42.     If Mr KIM were to reoffend in a similar manner to his previous very serious offences he has committed in the past, it is highly likely that it would cause serious harm to members of the Australian community. Further, drug offences of the kind committed by Mr KIM carry a real risk of harm to the broader community, both in terms of their extent and consequences.

43.     Considering the nature and seriousness of Mr KIM's conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr KIM reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs very heavily in support of cancellation of the visa in this case being in the national interest.

46    The materials that were considered by the Minister in making his decision, which were the attachments to the statement of reasons, included the Tribunal’s reasons, but did not include the evidence given by Dr Kwok at the Tribunal hearing (Dr Kwok’s report and the transcript of her oral testimony).

Immigration detention

47    On 12 February 2026, the applicant was detained under s 189(1) of the Act while he was at the Barilla Place address. He was given a copy of the Assistant Minister’s decision by hand, which was addressed to the Mannix Street address.

Ground 2A

The applicant’s contentions

48    By ground 2A, the applicant contends that he was denied procedural fairness. The applicant alleges that he was not notified of the Assistant Minister’s intention to exercise the power under s501A(2) and, as a result, was not afforded an opportunity to provide updated information to the Assistant Minister.

49    The relevant facts have been set out in the preceding section of the reasons. It is uncontroversial that the Assistant Minister was required to afford the applicant procedural fairness and that he attempted to afford the applicant procedural fairness. In summary, the steps taken by the Assistant Minister were as follows:

(a)    The Assistant Minister sent the first notice, dated 12 November 2024, to the Barilla Place address by registered post. The Barilla Place address was recorded in the Department’s ICSE database as the applicant’s residential address and was in fact the applicant’s residential address. For unknown reasons, the first notice was not received by the applicant, or his mother, at that address and was not subsequently collected by them from the local post office. The first notice was returned to the Department, thereby informing the Department that the notice had not been received by the applicant.

(b)    The Department’s ICSE database recorded two mobile phone numbers and an email address for the applicant. However, the Department elected not to attempt service of the notice on the applicant by either of those communication methods. Nor did the Department attempt to contact the applicant via either of those communication methods.

(c)    Instead, the Department sought information from Centrelink. The applicant’s Centrelink records gave his residential address as the Mannix Street address and the Department sent the second notice, dated 4 March 2025, to that address by registered post. The Australia Post tracking information recorded that the second notice was “signed for” upon delivery. I am satisfied that the second notice was delivered to the Mannix Street address and that someone at that address signed for it. I am also satisfied that the person who signed for the second notice knew the applicant personally. Nevertheless, the applicant has given unchallenged evidence that he never received the second notice.

50    The applicant submitted that, when sending the second notice to the Mannix Street address, the Department (or constructively, the Assistant Minister) was aware of the following matters:

(a)    the first notice sent to the Barilla Place address had been returned to the Department as it had not been signed for or collected at that address;

(b)    the Mannix Street address was not the applicant’s most recent residential address;

(c)    the Mannix Street address provided by Services Australia was inconsistent with the current address reported by the applicant to the Department, being the Barilla Place address; and

(d)    that applicant’s mobile and email contact details were available to the Department.

51    In these circumstances, the applicant submitted that it was unreasonable for the Department to send the second notice to the Mannix Street address without first attempting to clarify with the applicant his correct residential address using the mobile phone or email contact details recorded in the ICSE database. The Department also could have caused the notice to be delivered to the applicant by hand, as was done when the applicant was given a copy of the Assistant Minister’s decision by hand in February 2026. The applicant submitted that it was unreasonable for the Department not to undertake those further steps to ensure that the notice was delivered to the applicant in circumstances where:

(a)    the decision was of significant consequence for the applicant, being that his visa would be cancelled and he would likely be deported to Cambodia; and

(b)    making enquiries by mobile phone or email, or hand delivering the notice, were obvious steps to be taken, none of which were difficult or onerous.

The Assistant Minister’s contentions

52    The Assistant Minister contends that the Department took reasonable steps to try and afford natural justice to the applicant. The Department first relied on the last residential address known to the Department, recorded in the ICSE database, being the Barilla Place address which had been updated on 17 June 2024. Upon becoming aware that the first notice had been returned to sender, the Department took the reasonable step of seeking the applicant’s current residential address from Centrelink, which was recorded as the Mannix Street address. The notice was then sent to that address and was signed for at that address.

53    The Assistant Minister also placed reliance upon reg 2.55 of the Migration Regulations 1994 (Cth) (Regulations). The Assistant Minister submitted that, whilst fulfilling the requirements of reg 2.55 is not determinative of whether the Assistant Minister took all reasonable steps to notify the applicant of the intention to consider exercising the power in s 501A(2), the requirements provide guidance as to what would be reasonable. In that regard, the Assistant Minister referred to:

(a)    reg 2.55(3)(c), which contemplates giving notice by sending it by prepaid post to the person’s last residential address known to the Minister; and

(b)    reg 2.55(7)(a), which stipulates that, where the Minister gives a document to a person with an address in Australia by prepaid post, the person is taken to have received the document 7 working days after the date of the document.

Applicable principles

54    As stated earlier, it is uncontroversial that it is an implied condition of the exercise of the power under s 501A(2) that the person whose visa may be cancelled is afforded procedural fairness, which includes the affected person having an opportunity to make representations prior to a decision being made. The implied condition of procedural fairness requires the Minister to notify the affected person that the Minister is considering the exercise of the power and of the reasons and basis for the potential exercise of the power, and afford the affected person with an opportunity to be heard in relation to the decision by providing submissions and supporting materials.

55    The manner in which documents relating to visa cancellations are to be given to affected persons is the subject of regulation by the Regulations. However, consistently with the authorities (discussed below), the Assistant Minister did not submit that compliance with the Regulations is determinative of the question whether, in a given case, the requirements of procedural fairness are satisfied. The Assistant Minister did submit, however, that compliance with the Regulations is highly relevant to that assessment.

56    Section 504(1) of the Act empowers regulations to be made prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. The giving of notice of intention to consider cancellation under s 501A(2) (to satisfy the requirements of procedural fairness) is a matter that can be described as “necessary or convenient to be prescribed for carrying out or giving effect to” the Act. Section 504(1)(e) expressly empowers the making of regulations making provision for, and in relation to, the giving of documents to or the service of documents on any person or body for the purposes of the Act. Sections 504(2A) and (3) further stipulate that:

(2A)     The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations specifying circumstances in which a document is to be taken to have been given in a specified way.

(3)     The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.

57    The following provisions of the Regulations were current as at the date of the first and second notices in this matter.

58    Division 2.10 of the Regulations is titled “Documents relating to cancellation of visas”. Regulation 2.53A stipulates that the Division is made for the purposes of enumerated provisions of the Act, including s 504(1)(e). Regulation 2.55, within Div 2.10, is titled “Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation”. Regulation 2.55(1)(a) states that reg 2.55 applies “to a document relating to the proposed cancellation of a visa under the Act”. Regulation 2.55(3) provides as follows:

(3)     Subject to subregulation (3A), for a document other than a designated document, the Minister must give the document in one of the following ways:

(a)     by handing it to the person personally;

(b)     by handing it to another person who:

(i)    is at the person’s last residential or business address known to the Minister; and

(ii)     appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii)     appears to be at least 16 years of age;

(c)     by dating it, and then dispatching it:

(i)     within 3 working days (in the place of dispatch) of the date of the document; and

(ii)     by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister;

(d)    by transmitting the document by:

(i)     fax; or

(ii)     email; or

(iii)     other electronic means;

to the last fax number, email address or other electronic address known to the Minister.

59    A notice of intention to consider cancellation under s 501A(2) is not a ‘designated document’ as defined in reg 2.54. It follows that reg 2.55(3) applied to the notice of intention to consider cancellation required to be given by the Assistant Minister in the present case. Relevantly, one of the ways that the Minister was required to give the notice was by prepaid mail to the applicant’s last residential address known to the Minister.

60    Regulation 2.55(7) stipulates as follows:

(7)     If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b)     in any other case—21 days after the date of the document.

61    The Department’s Notification Requirements constitute procedural instructions to Departmental officers on how notices should be given to visa holders or applicants in the context of the wide range of decisions that can be made under the Act. The Notification Requirements do not refer to cancellation decisions under s 501A(2), but they do refer to cancellation decisions under s 501(2) (a power which is also subject to an implied condition of procedural fairness). In that context, the Notification Requirements stipulate that a notice of intention to consider cancellation must be given in accordance with one of the methods set out in reg 2.55.

62    The Notification Requirements provide procedural instructions for giving documents by a method specified in reg 2.55. Under the heading “Identifying the last address known to the Minister (reg 2.55)”, the Notification Requirements stated that “Officers must, as a matter of procedure, search departmental systems for the ‘last address known to the Minister’”. The Notification Requirements included the following further instructions (emphasis added):

The ‘last address known to the Minister’ is the last address of that type ‘known to the Minister’. For example, if:

•    the recipient advised an email address and

•    the following week the department was advised by Medicare of a residential address

the notification may be sent to either the residential address or the email address. However:

•    if Medicare advised of a residential address and

•    the following week the recipient advised of a residential address

the notification must be sent to the residential address provided by the recipient.

The recipient need not state that the address is for the purposes of receiving documents or request that documents be sent to the address. However, an email address cannot be used unless the client has expressly or impliedly consented to receiving electronic communications. A client providing an email address, for example on their incoming passenger card in response to the question “address in Australia”, without more, does not constitute consent to receive electronic communications. There must be some other evidence showing consent to use the email address provided … . If there is any doubt, electronic communications should not be used unless there is no other address known to the department … .

Officers must take all available steps to determine the last address ‘known to the Minister’, including searching ICSE/IRIS, TRIM files (for files in Australia), the passenger card database and the Settlement Database. Officers should take care with addresses recorded in the Settlement Database, as the Settlement Database does not distinguish between residential and business addresses. If appropriate, officers may need to liaise with other government departments or other persons (for example, an education provider or employer) who may have an address.

…

Under policy, enquiries to find the client should be conducted if:

•    the address was not provided to the department recently (whether an address is “recent” will depend on the circumstances, including the visa period) or

•    the notification is returned undelivered to the department.

Officers should contact the following third parties, if appropriate, and when doing so must bear in mind privacy issues:

•    Medicare

•    Centrelink

•    state/territory police and/or correction facilities

•    private sources, such as family members or utility companies.

The last known address does not depend on the officer’s knowledge coming from a particular source. The information from a third party source also does not need to be verified in any particular way. It is sufficient if the means of knowledge relied on is reasonable in the circumstances. In other words, it must be reasonable for the officer to rely on information from a third party about the client’s address.

…

As a matter of policy, officers should attempt to contact the client (for example, by telephone or email) to verify that an address provided by a third party actually belongs to the client.

There may be instances where the department has no reasonable means of verifying an address provided by the third party, or there are means of verifying the address but the verification steps fail to either confirm or deny that the address belongs to the client. In these circumstances, it would be reasonable for officers to rely on the address provided by the third party as the client’s last known address for the purposes of regulation 2.55. Officers must, as a matter of procedure, record in the relevant departmental system (for example, ICSE/IRIS) their attempts to identify the last address known to the department.

…

As a matter of policy, it is not appropriate to take a “scattergun” approach by simply sending the notification to all of the client’s addresses ever known to the department. It is necessary to identify, or to do what is reasonable in the circumstances to identify, the last address known to the Minister and to have the notification sent only to that address.

63    Under the heading “Inconsistent addresses”, the Notification Requirements contained the following instructions:

If different departmental systems record different addresses, such that the last address known to the department cannot be determined with sufficient accuracy, officers should:

•    send a letter to each of the addresses which may constitute the last address known to the department asking the client to contact the department to confirm their address or

•    telephone the client to confirm their address for the purposes of receiving documents …

and

•    send the notification to the most recently recorded address, irrespective of the system on which it is recorded and

•    send copies of the notifications to all other addresses which may constitute last address ‘known to the Minister’ by the same method of giving the notification (for example, by prepaid post) …

64    The content of the obligation to provide procedural fairness by taking reasonable steps to notify an affected person of an intention to consider cancellation has been the subject of judicial consideration in a number of cases involving the exercise of power under s 501(2).

65    In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416 (Osborne), the Department sent a letter dated 23 July 2001, notifying Mr Osborne that the Minister was considering whether to cancel his visa under s 501(2), to an address in Kondoola, South Australia. When Mr Osborne did not respond to that letter, the Minister sent a further letter dated 4 September 2001 to the same address. The Kondoola address had been obtained by the Department from an interview held with Mr Osborne in July 2000 while he was imprisoned. Mr Osborne told the Department officer that, upon his release, he intended to move in with his mother at the Kondoola address. Mr Osborne had not moved in with his mother and was in fact living at a house in Morley, South Australia. Mr Osborne was not aware that the letters had been sent to his mother’s address until he was detained following the Minister’s decision to cancel his visa. Justice French determined that the Minister had taken all reasonable steps to notify Mr Osborne of the intended cancellation decision:

19    Unlike the provisions of ss 129 and 131 considered in [Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167], there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: “The person does not satisfy the Minister that the person passes the character test.” It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.

20    The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.

66    In Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 (Ball), the Minister sent a notice of her intention to consider cancelling Ms Ball’s visa by prepaid registered post on 29 January 2003 to Ms Ball’s last known address. This was an address in Kalgoorlie, which Ms Ball had supplied when she appeared in the Kalgoorlie Court of Petty Sessions on 10 January 2003 and was also the address which had been supplied to the Australian Taxation Office (ATO) in March 2002. In fact, Ms Ball had moved to Melbourne on 18 January 2003. The notice was returned to the Minister marked “unclaimed”. No further attempt was made to provide the notice to Ms Ball. The Minister then cancelled her visa on 13 March 2003.

67    Ms Ball sought judicial review of the Minister’s decision on several grounds, including that the Minister did not afford her procedural fairness. The primary judge determined that by obtaining Ms Ball’s address from her criminal proceedings and the ATO, the Minister had taken reasonable steps to notify Ms Ball, consistently with the decision of French J in Osborne. The primary judge ultimately quashed the Minister’s decision on other grounds. The Minister appealed that decision to the Full Court. Ms Ball, by notice of contention, claimed that the cancellation of her visa in circumstances where she had not in fact received the notice, and where the Minister knew that fact, amounted to a denial of procedural fairness.

68    In relation to the notice of contention, Jacobson and Bennett JJ concluded (at [104]) that, by obtaining Ms Ball’s last known address, there were no further reasonable steps that the Minister could have taken in circumstances where there was no alternative address known. Their Honours determined that the primary judge had made no error in this part of his Honour’s reasoning (at [106]). In relation to the fact that the Minister was aware that the notice had been returned ‘unclaimed’, their Honours reasoned (at [104]):

It is clear that French J held that the Act, not the Regulations, requires that only reasonable steps need be taken … The Regulations establish a mechanism for notification which had been followed in Osborne and have been found, as a matter of fact, to have been followed in the present case. Even if it is accepted that, by the time the Minister made the decision, she was aware that the Notice had been returned unclaimed, the taking of those reasonable steps in circumstances where no alternative address for the respondent was known was sufficient. Otherwise, a person deliberately evading service could deprive the Minister of the power to cancel the visa.

69    Writing separately, Justice Dowsett agreed with Jacobson and Bennett JJ in respect of the notice of contention. His Honour rejected Ms Ball’s submission that there was an “absolute obligation” upon the Minister to notify Ms Ball and that the decision to cancel a visa displaces a “fundamental right”:

19    … Clearly, s 501(2) is designed to serve a protective purpose. Its efficacy should not be undermined by imposing an obligation as to notification which may, not infrequently, be impossible to discharge. The assertion of a “fundamental right” does nothing to clarify, and much to obscure, the position.

20    The approach adopted by French J implies that the Minister may act without notification where reasonable steps to notify the visa-holder have failed or no such steps are available. It might be said that the device of an implied term substantially reduces the extent of procedural fairness which Parliament intended to confer in connection with decisions pursuant to s 501(2). However, as I have said, the provision is presumably designed to protect the Australian community. It will most often be invoked where, as in Osborne, the visa-holder has been dealt with in Australian courts and so his or her location is likely to be known or relatively easily ascertained. In other cases, the visa-holder may have concealed information concerning his or her criminal history prior to entering Australia. In neither case does the test proposed by French J unreasonably undermine the requirement of procedural fairness.

21    Whilst I accept the correctness of the approach adopted by French J, it may not resolve all questions as to procedural fairness likely to arise in connection with s 501(2). Other questions might include:

•    whether the Minister must take reasonable steps or all reasonable steps; and

•    how the Minister should proceed if the initial method of notification is unsuccessful.

70    The only possible further step suggested by Ms Ball that the Minister could have taken to notify her was use of a newspaper advertisement, which Dowsett J considered would be futile (at [23]). In light of this and the primary judge’s finding that the Minister could not have taken any further reasonable steps, Dowsett J determined that the Minister had taken all reasonable steps to notify Ms Ball of the intention to cancel her visa.

71    Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127 (George) was decided about 6 months after Ball, but makes no reference to the Full Court’s decision in Ball (even though the primary judge in George made reference to the primary judgment in Ball). Some aspects of the reasoning in George are difficult to reconcile with the reasoning in Ball, although ultimately there are some material differences in the factual circumstances.

72    The Department sent a letter to Mr George notifying him that the Minister would be considering the cancellation of his visa under s 501(2) of the Act. The letter was sent by registered mail to an address held by the Department, but was returned to the Department undelivered. Mr George gave evidence that he had never lived at that address, but he believed that his former partner had lived there whilst Mr George was in prison. The primary judgment did not disclose how the Department learned of that address. After the first notice was returned to the Department, the West Australian Police informed the Department that Mr George was living at another address and also provided the Department with two telephone numbers (including a mobile number). On the basis of that information, the Department sent another copy of the notice to the address provided by the police. That letter was not returned to the Department. Mr George was in fact not living at either the first or second address at the time that the respective letters were sent; however, some of his friends were living at the second address at the time that the second letter was sent. Mr George claimed (and the Minister did not dispute) that he did not receive either of the letters from the Department and was not aware of them. The Department did not seek to follow up with Mr George following his lack of response to the second letter. The Department did not seek to contact Mr George using the phone numbers provided by the police or to contact him in person. The Minister subsequently cancelled Mr George’s visa. The Minister believed at the time he made the decision that Mr George had been notified of the cancellation process and had not taken up the invitation to make submissions.

73    Mr George sought judicial review of that decision. At first instance, the primary judge concluded that the Department had not made reasonable attempts to contact the visa holder about the decision, largely because the Department had not followed its own internal procedures which, at that time, required the Department to attempt to give notice to the visa holder personally. The Full Court dismissed the Minister’s appeal from the decision of the primary judge. There were two principal strands to the Full Court’s reasoning. First, the Full Court concluded (at [36]-[37]) that reg 2.55(3) had no application in the circumstances of the case because Mr George had never lived at either of the addresses to which the notices had been sent. In so concluding, the Full Court reasoned that the phrase “the person’s last residential address … known to the Minister” refers to an address at which the person had resided at some point in time (at [36]). It followed that reg 2.55(7) had no application. Second, the Full Court concluded that a cancellation decision will involve jurisdictional error if the visa holder was not notified of the potential decision, even if the Minister believed on reasonable grounds that the visa holder had been notified (at [53]), albeit that the position will be different if the visa holder actively avoids receiving communications from the Minister (at [54]). As is apparent, the reasoning of the Full Court in George is difficult to reconcile with the reasoning of the Full Court in Ball and the reasoning of French J in Osborne which was approved by the Full Court in Ball.

74    Horne v Minister for Immigration and Citizenship [2008] FCA 581; 246 ALR 380 (Horne) also concerned a visa cancellation decision under s 501(2) of the Act. On 5 January 2006, the Department wrote to Mr Horne by registered mail notifying him of the intention to consider cancellation of his visa. The letter was sent to an address in Gosnells, Western Australia. Mr Horne had lived at that address with his family after his release from prison on or about 18 July 2005. However, in late 2005 Mr Horne left that address and stayed in a series of men’s refuges. At the time the Department sent the notice, Mr Horne was living alone in a unit provided by Mission Australia. On 6 January 2006, one of Mr Horne’s daughters signed a ‘Delivery Confirmation Advice Receipt’ for the registered letter addressed to Mr Horne, using her usual signature. There was uncontradicted evidence that the daughter did not give the letter to Mr Horne or tell anyone about it. Mr Horne’s uncontradicted evidence was that he first saw the letter after the visa cancellation decision had been made. The Department duly received the delivery confirmation signed by Mr Horne’s daughter. On 21 February 2006, an officer endorsed a file copy of the letter of 5 January 2006 with a notation: ‘Please confirm the accuracy of this [Gosnells] address’. No further action was taken at this time in relation to cancellation of Mr Horne’s visa. In October 2006, a Departmental case officer made several attempts to ascertain whether Mr Horne would be making any written response to the notice of 5 January 2006. The steps consisted of telephoning three numbers that were associated with Mr Horne, including a number provided by Centrelink and his partner’s home phone and mobile number. On 10 January 2007, the Department sent a second notice to the Gosnells address, which was signed for by an acquaintance of Mr Horne. The Department sent copies of the 10 January 2007 letter to two other addresses associated with Mr Horne, including his partner’s address, but both were returned to sender. On 15 June 2007, the Department obtained an updated address from Centrelink, which was a caravan park in Orange, NSW and sent a third notice to that address. That letter was returned to sender with the mark “Left address/Unknown”. On the day the third notice was returned, the Department requested Centrelink to advise whether Centrelink had updated address information for Mr Horne. Centrelink responded by advising that Mr Horne was then residing at the caravan park in Orange. That information was incorrect. Mr Horne had in fact left the Orange address and moved to Sydney, where he was arrested and remained in custody from 21 June 2007 to 20 March 2008.

75    On 21 August 2007, a Departmental officer submitted to the Minister an Issues Paper seeking a decision on whether to cancel Mr Horne’s visa. The Issues Paper recorded the history of the attempts to contact Mr Horne. The Department informed the Minister that the notice had been provided to the Orange address and that, although the notice had been returned to the Department with the mark “Left address/Unknown”, the address had been reconfirmed by Centrelink. The Department expressed the opinion that, in these circumstances, Mr Horne was deemed to have received the notice. On 20 September 2007, the Minister cancelled Mr Horne’s visa. Mr Horne was taken into immigration detention on the day he was released from custody.

76    In Horne, Justice Sackville noted the competing considerations that arise in cases such as the present:

31     Cases such as the present create a difficulty. There can be few decisions of greater importance to the liberty and security of an individual than a decision by the Executive branch of government to cancel his or her visa. Such a decision renders the individual liable to immediate detention and removal from Australia: Migration Act, ss 189, 192, 198. Procedural fairness would seem to require, therefore, that the visa holder be afforded ample opportunity to put to the decision-maker reasons why the power to cancel the visa should not be exercised.

32     On the other hand, those responsible for administering the Migration Act will often encounter difficulties in contacting a visa holder in order to notify him or her that consideration is to be given to cancellation of the visa. This may be so even where the Department goes to considerable lengths to ensure that the visa holder is notified of the process and receives an adequate opportunity to present his or her case. If it is impossible for the Minister to cancel a visa validly unless actual notice is given to the visa holder in advance, the process might be frustrated, to the detriment of the public interest. (I note, however, that s 192 of the Migration Act empowers an officer to detain a non-citizen if the officer reasonably suspects that the non-citizen holds a visa that may be cancelled and that the non-citizen will not co-operate with officers in their inquiries.)

77    His Honour surveyed the previous decisions in Osborne, Ball and George and observed (at [48]) that it was not easy to reconcile the Full Court decisions. I respectfully agree with that observation. Ultimately, His Honour concluded (at [63]) that the cancellation decision was vitiated by jurisdictional error because the Minister had not taken reasonable steps to notify Mr Horne that the Minister intended to consider cancelling his visa, and Mr Horne was thereby denied procedural fairness. His Honour’s reasons for reaching that conclusion included the following:

(a)    In assessing the reasonableness of the Minister’s actions, it is appropriate to take account of the serious consequences to the visa holder of a cancellation of his or her visa (at [54]).

(b)    At all times, the Department had been made aware that Mr Horne had not received the notices sent to him. On the occasions that the notices were “signed for”, the signatures were not those of Mr Horne. In any event, the case was conducted on the basis that the Minister had not formed an affirmative belief that Mr Horne had actually received any of the notices (at [56]).

(c)    The Department cannot be expected to make endless enquiries or to pursue avenues that are unlikely to yield any worthwhile results. Reasonable efforts to notify a visa holder that cancellation is being considered do not require the Department to exercise special ingenuity or expend disproportionate resources in an attempt to locate the visa holder (at [59]).

(d)    In the case of Mr Horne, however, there were simple enquiries the Department could have made that would have revealed the applicant’s whereabouts. A telephone call to the Orange caravan park would have confirmed the applicant’s departure from that location. From Mr Horne’s criminal record and his apparent failure to update his address with Centrelink (presumably making it more difficult to claim benefits), it must have been obvious to the Department that there was at least a realistic chance that he had been taken into custody by the police. In the absence of evidence to the contrary from the Minister, it could be inferred that it was a simple matter to enquire of the New South Wales Police (or the Western Australian Police) whether the applicant had been taken into custody (at [60] and [61]).

78    In Horne, the Minister did not contend that Mr Horne’s claims of a denial of procedural fairness could be met by establishing that the terms of reg 2.55 had been satisfied. In those circumstances, Sackville J determined that it was not necessary to consider reg 2.55 (at [66]-[67]).

Consideration

79    Acknowledging that it is not easy to reconcile the Full Court decisions in Ball and George, and further acknowledging that the application and effect of reg 2.55 in this context has been explained in different ways in the authorities, I consider that the present case should be decided by applying the following principles that emerge from the authorities:

(a)    First, the power to cancel a visa under s 501A(2) is subject to an implied obligation of procedural fairness. That obligation requires that notice be given to the affected person that the Minister is considering the exercise of the power, so that the affected person has the opportunity to be heard by providing submissions and supporting materials.

(b)    Second, the obligation of notification is not absolute for the practical reason that an affected person could defeat the cancellation of their visa simply by avoiding notification. However, procedural fairness requires that reasonable steps be taken to notify the affected person that the Minister is considering the exercise of the power.

(c)    Third, the assessment of the reasonableness of the steps taken to notify the affected person will depend upon the information available to the Minister and the information that is readily obtainable by the Minister.

(d)    Fourth, in assessing the reasonableness of the steps taken, account must be taken of the serious consequences to the affected person of a cancellation of his or her visa. Such a decision renders the individual liable to immediate detention and removal from Australia.

(e)    Fifth, and conversely, the Minister (through the Department) cannot be expected to make endless enquiries or to pursue avenues that are unlikely to yield any worthwhile results. Reasonable efforts to notify a visa holder that cancellation is being considered do not require the exercise of special ingenuity or the expenditure of disproportionate resources in an attempt to locate the visa holder.

(f)    Sixth, the reasonableness of the steps taken is to be assessed at the time that the power of cancellation is exercised. It is not assessed at the time that an individual step is taken. By way of illustration, notice may initially be sent to a residential address of the affected person recorded on a Departmental file. At the time the notice is sent, that may be regarded as a reasonable step. However, if the notice is returned to the Department indicating that it has not been received by the affected person, and the Minister proceeds to cancel the visa, the question of reasonable steps must be assessed as at the date of cancellation; ie were there other reasonable steps that could have been taken.

(g)    Seventh, reg 2.55(3) is not determinative of the question whether the obligation of procedural fairness has been satisfied in a given case, even where reg 2.55(7) might be considered to apply. Parliament is able to codify and limit the requirements of procedural fairness in the context of specific statutory powers. An illustration of such legislation is Subdiv AB of Div 3 of Part 2 of the Act. However, Regulation 2.55(3) does not purport to be a codification of the requirements of procedural fairness in the context of statutory powers to cancel visas such as ss 501(2) and 501A(2). Rather, as is clear from its terms, reg 2.55(3) imposes an obligation on the Minister to give notice by one of the methods specified in the regulation. In many cases, compliance with the requirements of reg 2.55(3) will fulfill the obligation of procedural fairness. However, whether that is so will depend upon the facts known to the Minister at the time of the cancellation decision including, relevantly, whether it is known that the notice was not in fact received by the affected person.

80    In the present case, the Assistant Minister complied with the requirements of reg 2.55(3) when sending the first notice to the Barilla Place address. This was the last address of the applicant known to the Assistant Minister at that time. However, the Department then received information that the letter had not been delivered. Had the Department not received the ‘return to sender’ information, and the Assistant Minister proceeded to cancel the applicant’s visa at that point in time, it may have been concluded that the requirements of procedural fairness had been satisfied.

81    Having learned that the applicant had not received the notice at the Barilla Place address, the Department sought information from Centrelink. That was also a reasonable step. Centrelink provided the Department with the Mannix Street address. Apparently without any further verification or consideration, the Department then sent a notice to that address, and the notice was “signed for”. The evidence did not reveal what information was received by the Department with respect to that signature, but I infer that the Department would have learned that the second notice was not signed for by the applicant.

82    The applicant did not respond to either the first or the second notice. Despite that, the Assistant Minister acted upon the signature for the second notice in concluding that notice of the intention to consider cancellation had been given to the applicant.

83    In my view, applying the principles stated above, the Assistant Minister did not satisfy the requirements of procedural fairness in this case. That is for two reasons.

84    First, the information known to the Department, and thereby taken to be known by the Assistant Minister, at the time of the cancellation decision created real doubt whether the Mannix Street address was an address at which the applicant was residing, and whether the applicant had received the second notice. The doubt arose from the inconsistencies between the Department’s own records (in the ICSE database) and those of Centrelink. The ICSE database recorded that the applicant had previously given the Department his residential address as the Mannix Street address, dating back to 19 December 2017. However, the applicant had more recently updated that address to the Barilla Place address. The Centrelink information also recorded the Mannix Street address as being the applicant’s residential address from 19 December 2017. The coincidence of those dates created the real possibility that the applicant had not updated his residential address with Centrelink. Further, although the second notice sent to the Mannix Street address had been signed for, I infer (in the absence of other evidence from the Department) that the Department was aware that it had not been signed for by the applicant. Further still, the Department knew that the applicant had made no response to the second notice, notwithstanding the importance to him of the cancellation decision. Those facts combined created real doubt whether the Mannix Street address was an address at which the applicant was residing and whether the applicant had received the second notice.

85    Second, there were obvious steps that could have been taken by the Department at that time to seek to confirm whether the Mannix Street address was the current residential address of the applicant or whether the applicant had received the second notice. The Department’s ICSE database recorded two mobile phone numbers for the applicant and an email address. The evidence establishes that one of the mobile phone numbers was the applicant’s then current number, and the email address was his sister’s email address. It would not have required any ingenuity or the expenditure of any significant resources for the Department to make enquiries by one or both of those methods. The Department’s Notification Requirements, set out earlier, expressly contemplate that “third party” information (such as information from Centrelink) should be verified, if possible, by telephone or email contact, stating:

As a matter of policy, officers should attempt to contact the client (for example, by telephone or email) to verify that an address provided by a third party actually belongs to the client.

86    No explanation was provided by the Assistant Minister as to why no attempts were made by the Department to verify the applicant’s residential address by one of those methods.

87    For those reasons, I consider that the Assistant Minister failed to afford the applicant procedural fairness and the cancellation decision under s 501A(2) must be set aside for that reason.

Ground 2B

88    Having concluded that the Assistant Minister failed to afford the applicant procedural fairness, it is strictly unnecessary to consider ground 2B. It would also be somewhat artificial to do so in the circumstances. By ground 2B, the applicant contends that the Assistant Minister made legally unreasonable or illogical or irrational findings concerning the applicant’s rehabilitation and his associated risk of reoffending having regard to the material that was before the Assistant Minister. However, much of the applicant’s argument on this ground was premised on the facts that the applicant did not have an opportunity to put submissions to the Assistant Minister, including the evidence of Dr Kwok. Thus, in argument, the applicant blurred the distinction between grounds 2A and 2B.

89    In so far as the applicant criticised the reasoning process of the Assistant Minister on the basis of the materials before the Assistant Minister, the criticism was unpersuasive and fell well short of establishing legal unreasonableness, illogicality or irrationality. The unstated premise of the applicant’s argument was that it would be illogical or irrational for the Assistant Minister to reach a different conclusion to the Tribunal on the topic of the risk of reoffending in the absence of the Assistant Minister receiving additional evidence that supported the different conclusion. The applicant submitted that the Assistant Minister made serious findings that the applicant had demonstrated an inability to rehabilitate himself and represented an ongoing risk of reoffending, and yet the only material the Assistant Minister had received that was additional to the material before the Tribunal was information that the applicant had been convicted and received a $300 fine for a drug possession offence in November 2023. The applicant submitted that that material was dated and revealed limited information about the offending.

90    It hardly needs to be said that there is nothing unreasonable, illogical or irrational in the Assistant Minister considering the same material that was before the Tribunal but reaching a different conclusion to the Tribunal on that material. The Assistant Minister’s statement of reasons for concluding that there is an ongoing risk that the applicant will reoffend have been reproduced earlier. The Assistant Minister stated that, in assessing the likelihood of the applicant reoffending in the future, he considered the available information as to matters that may have contributed to the applicant’s past conduct, as well as indications of remorse and the extent of the applicant’s rehabilitation. The matters then considered by the Assistant Minister were logically relevant to the assessment of the risk of reoffending. Those matters included regular statements of remorse and rehabilitation by the applicant which were followed by further serious reoffending. The Assistant Minister concluded that the applicant presents an ongoing risk of reoffending because:

(a)    he is presently 45 years of age and has an extensive criminal record and he cannot attribute his offending to a lack of maturity;

(b)    he was formally warned about the consequences of further offending on two separate occasions (in 2005 and 2011) and yet ignored those warnings;

(c)    his extensive criminal record and previous warnings do not demonstrate a likelihood that he will rehabilitate, and to the contrary, support an ongoing risk of recidivism;

(d)    after being issued with the notice of intention to consider setting aside the Tribunal decision to cancel his visa on 15 June 2019, the applicant proceeded to reoffend, which indicates an unacceptable disregard for the consequences of his offending on his migration status; and

(e)    his longstanding drug addiction and unsuccessful attempts at rehabilitation suggest that rehabilitation is highly unlikely.

91    There is nothing unreasonable, illogical or irrational in the foregoing reasons and conclusions expressed by the Assistant Minister.

92    The applicant further submitted that the Assistant Minister’s reasons and conclusion were legally deficient because the Assistant Minister relied upon information that was current as at July 2023 (when the Tribunal made its decision) and did not seek to update that information to the date of the Minister’s decision in July 2025. There is no merit in that submission. The Assistant Minister’s assessment of the applicant’s risk of reoffending had regard to the applicant’s history of statements of remorse and rehabilitation which were followed by further serious reoffending. That historical information cannot be ‘updated’ by information in the period July 2023 to July 2025, and the applicant did not identify what further matters should have been considered by the Assistant Minister. The Assistant Minister took into account the fact that the applicant was convicted of yet a further offence in November 2023. There was no error in doing so. The Assistant Minister did not assume that the applicant had otherwise offended in the period July 2023 to July 2025, and therefore the Assistant Minister’s reasoning is based on the premise that the only further offending in that period was the drug possession offence for which a conviction was recorded in November 2023.

93    One criticism that might be made of the Assistant Minister’s decision is that it appears that the Assistant Minister did not have before him a copy of the evidence of Dr Kwok. The Assistant Minister did, however, have before him a copy of the Tribunal’s reasons which refer to the relevant aspects of Dr Kwok’s evidence on the question of the risk of reoffending. Ultimately, the applicant’s challenge under ground 2B did not rely upon a contention that the Assistant Minister failed to have regard to Dr Kwok’s evidence. It would be expected that, if the applicant were given a fair opportunity to be heard on the cancellation of his visa, the applicant would rely upon Dr Kwok’s evidence and place that material before the Assistant Minister.

94    For those reasons, I reject ground 2B.

Conclusion and orders

95    In conclusion, the Assistant Minister failed to afford the applicant procedural fairness and the cancellation decision under s 501A(2) must be set aside for that reason.

96    Consistently with the relief sought by the applicant in his originating application, a writ of certiorari will be issued to quash the decision of the Assistant Minister made under s 501A(2) of the Act on 3 July 2025.

97    The applicant also sought an order restraining the Assistant Minister, by himself or by his Department, officers, delegates or agents, from giving effect to his decision on 3 July 2025, whether by continuing to detain the applicant or otherwise. The applicant did not advance any submissions with respect to the necessity for an injunctive order in that form. There is no reason to believe that the Assistant Minister will fail to give effect to the order of the Court quashing the cancellation decision. It follows that there is no demonstrated necessity to make an order restraining the Assistant Minister from giving effect to his decision on 3 July 2025 in circumstances where the decision has been quashed by the Court. I therefore decline to make the injunctive order sought by the applicant.

98    An order for costs will be made in favour of the applicant.

Associate:

Dated:    30 July 2026