Federal Court of Australia

EHQ25 v Minister for Immigration and Citizenship [2026] FCA 1039

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Minister for Immigration and Citizenship”.

2.    The application for an extension of time filed 6 June 2025 is dismissed.

3.    The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

Introduction

1    The applicant held a Bridging A (Class WA) (Subclass 010) visa. Following a judge alone trial in the District Court of New South Wales, the applicant was found guilty of six counts of sexual intercourse and sexual touching of a 13-year-old female. At the time, he was 41 years old. On 1 April 2022, he was sentenced to an aggregate term of imprisonment of three years commencing on 19 November 2021. The offences occurred on 15 March 2020.

2    On 2 June 2022, the visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant then made a request to revoke the cancellation, which was refused by the Minister’s delegate on 25 October 2023. He then applied to the Administrative Appeals Tribunal to review the non-revocation decision. On 22 January 2024, the Tribunal set aside the non-revocation decision and revoked the cancellation decision. The Tribunal published reasons for that decision on 27 March 2024 (TD).

3    On 3 June 2024, the Minister set aside the decision of the Tribunal pursuant to s 501BA of the Act.

4    The applicant now applies for an extension of time, filed on 6 June 2025, to bring an application pursuant to s 476A of the Act to review the Minister’s decision.

5    The applicant requires a substantial extension of the 35-day time limit prescribed at s 477A of the Act. His proposed grounds of review are now expressed in the form of a Further Amended Draft Application dated 22 June 2026. His present application was listed for hearing in September 2025 but was adjourned sine die pending the outcome of an appeal in another matter to the Full Court.

6    A major difficulty that the applicant must confront is the inadequate explanation for his delay of approximately 11 months in the filing of his application. The Minister’s decision was hand delivered to him on 12 June 2024, whereupon he was taken into immigration detention, where he remains.

7    For the reasons that follow, the application to extend time is dismissed.

Presently relevant background

8    The applicant is a citizen of Lebanon. He permanently relocated to Australia in July 2013, when he became engaged and was granted a prospective spouse visa. He engaged in employment between 2013 and 2021. He married his wife in April 2015 and they have two children, one born in 2017 and the other in 2018. He has a close relationship with his brother, and other family members who are Australian citizens. He has nieces and nephews who are Australian citizens. The applicant still has family members who reside in Lebanon.

9    His own offending involved a child who was not known to him. For reasons that have never been made clear, the child accepted the applicant’s invitation to get into his motor-vehicle. As the applicant and the child were driving around a suburb in Sydney, there was some degree of flirtatious behaviour and conversation. The applicant drove to a park and placed his hand inside the child’s bra and touched her breasts. He then touched her leg on the outside before digitally penetrating her. The applicant drove to another location where he again touched her breasts and digitally penetrated her and asked her to suck his penis. When he was done, he let the child out at a railway station and drove away.

10    The applicant denied that the events occurred. He did not assert an honest and reasonable belief that the child was not a minor. He pleaded not guilty. A District Court Judge found each charge proven beyond reasonable doubt. In his sentencing remarks, the Judge observed that the offences were unusual in that the applicant was a person of good character with no prior criminal history.

11    The Tribunal noted that in the request for revocation dated 28 June 2022, the applicant asserted that he did not commit the offences and that he was in the process of appealing his conviction: TD [42] – [44]. When cross-examined before the Tribunal at the hearing in January 2024, he said that he no longer intended to press the appeal for economic reasons (TD [45]), adding:

So then I talked to a Legal Aid lawyer. And then we thought to just appeal for the conviction of the – the visa… – revocation. Just an issue too, just to ask, an appeal regarding the visa revocation, not appeal the conviction.

12    He further accepted that he made his decision to abandon the appeal whilst in prison in late 2022 or early 2023, primarily because the sentence had only approximately one month to run.

13    He made a statement dated 2 December 2023 in the Tribunal proceeding in which he acknowledged the fact of his offending. He said (TD [47]):

I make this statement to express my sincere remorse and reflections on the events that led to my incarceration and the subsequent cancellation of my visa.

I am deeply sorry for the actions and decisions that led to my involvement in criminal activities. My actions were misguided, and I failed to foresee the consequences that unfolded. The experience of going to jail was a significant wake-up call for me, and it made me realise the gravity of my mistakes.

14    The Tribunal recorded that the applicant completed a sexual harassment compliance course in July 2023: TD [53].

15    The Tribunal concluded that the applicant’s offending was very serious, conformably with Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA: TD [97] – [99]. It also concluded that there was an obvious risk of serious consequences for members of the Australian community, particularly young women or girls, should the applicant commit further sexual offences which impacts, it concluded, are very serious: TD [101] – [102]. However, the Tribunal concluded that there was a reduced risk of recidivism: TD [107]. In the balance of the reasons, the Tribunal addressed each of the considerations required by Direction 99 and attached significant weight to the expectations of the Australian community. However, balanced with each of the other relevant considerations, the Tribunal concluded at TD [157] – [162] that it was satisfied in the circumstances there was another reason to revoke the mandatory cancellation of the visa.

16    The Tribunal’s decision was then brought to the attention of the Minister who concluded that he was satisfied that it was in the national interest to cancel the visa pursuant to 501BA of the Act. The Minister’s decision was hand delivered to the applicant on 12 June 2024 with an undated covering letter. The letter commenced by reciting briefly the procedural history and included this note:

The decision to cancel your visa has been made by the Minister. While the Administrative Appeals Tribunal has the power to review decisions to cancel or refuse the grant of a visa under s501 [sic] of the Migration Act made by delegates of the Minister, it cannot review decisions made by the Minister personally. You are free to seek your own independent legal advice regarding your position, if you wish.

17    The letter made no mention of review pursuant to s 476A of the Act.

18    There is no evidence that the applicant took any timely advice about an application to review the Minister’s decision in this Court. When the applicant applied to revoke the mandatory cancellation of his visa on 28 June 2022, he recorded “contact my lawyers” in the personal details section which requested an email address. On the same day he signed a Notice of Appointment of a Registered Migration Agent or Legal Practitioner and nominated Astoria Lawyers. Following the delegate’s decision not to revoke the cancellation, on 28 September 2023 he applied to the Tribunal for review and was represented by his counsel at the hearing in January 2024.

19    The Minister’s reasons at [94] – [106] addressed the applicant’s protection claims and noted that despite the cancellation of the visa, it was open to apply for a protection visa and:

Provided that such a visa application is valid, the duty to remove him under s198 [sic] of the Act would not apply while the application was being determined.

20    The applicant then applied for a protection visa on 1 August 2024. His application disclosed that he was represented by counsel. A delegate of the Minister refused that application on 30 August 2024. On 2 September 2024, he then applied with the benefit of legal representation from counsel to the Administrative Review Tribunal (ART) for review of that decision.

21    On 7 March 2025, the ART affirmed the delegate’s decision not to grant a protection visa. On 10 April 2025, the applicant lodged an application for judicial review with the Federal Circuit and Family Court of Australia (Div 2) (Circuit Court). On that application he was represented by a new solicitor and new counsel. I was informed during submissions that the Circuit Court set aside the ART decision and remitted the application for consideration according to law. I have not been informed of the progress or outcome of the remittal.

The Minister’s decision

22    The Minister’s statement of reasons why he was satisfied that it is in the national interest to cancel the visa are structured as follows: The Minister did not afford the applicant an opportunity to be heard before making his decision, conformably with s 501BA(3), however, he did give consideration to the information provided by the applicant concerning his request for revocation and to the decision record in the Tribunal: [8] – [10]. The reasons then focus upon the protection of the community, commencing with the Minister’s finding that the applicant’s criminal conduct was very serious: [18] – [33]. Next, consideration was given to the risk to the Australian community and the likelihood of reoffending from [34]. It is this component of the reasons that the applicant seeks to impugn in the first proposed ground of review based on illogical, irrational or unreasonable reasoning. At [40], the Minister noted that the applicant maintained his innocence in his request to revoke the mandatory cancellation of the visa and asserted that he intended to pursue an appeal. At [42], the Minister found:

In summary, [the applicant] was convicted of sex based offending against a minor who was previously unknown to him. The evidence before me indicates that this event was an isolated instance of offending which [the applicant] continued to deny until he submitted a statement dated 2 December 2023 acknowledging some responsibility for his offending conduct, however, he has not provided any explanations or definitive causal factors for his offending conduct. Therefore I cannot be satisfied that the risk of reoffending is now low.

23    At [45], the Minister noted that the applicant referred to the child as “the alleged victim” in his request for revocation, despite his conviction for the offences in the District Court. At [46], the Minister noted that the applicant maintained his innocence after he was sentenced and gave evidence before the Tribunal that he only abandoned his intention to appeal one month prior to the expiration of his sentence. Then at [47] – [49], the Minister found:

    It is apparent that [the applicant] did not take any responsibility or express any remorse for his criminal conduct until the AAT proceeding when he submitted a statement dated 2 December 2023.

    In his statement of 2 December 2023, [the applicant] stated that the experience of incarceration and the risk of his visa status had been sobering and he understood the importance of adhering to the law. While [the applicant] has made statements promising to abide by the law, I find that [the applicant]'s inability to identify or articulate the very serious impacts of his criminal offending on the victim undermine these statements. Rather his evidence has only gone so far as to outline the impact of his offending conduct on him, including the impact of being incarcerated at the time of his mother's death, and the impact on his wife and children. I find that these statements indicate that he had, and continues to have, limited insight into the impact of his offending conduct on the victim.

    Accordingly, in these circumstances, I give limited weight to any expressions of remorse that [the applicant] has made.

24    Mr Guo for the applicant submits that this reasoning bespeaks error because the Minister made an assumption that the past state of affairs continued to be the case when he made his decision, and did not rely on facts that might be probative of an inference that the state of affairs has continued: GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [51] – [54] (Bennett J); Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [97] (Neskovcin J): XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210 at [88] – [89] (Horan J); CPDL v Minister for Immigration and Citizenship [2026] FCA 342 at [62] – [64] (Hill J); and Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; (2026) 315 FCR 435 at [42] – [48] (Perry, Kennett and Shariff JJ).

25    This impugned reasoning in part led the Minister to conclude, having regard to the nature and seriousness of the applicant’s conduct and the potential harm to the Australian community should he commit further offences or engage in other serious conduct, that these matters weighed heavily in support of cancellation of the visa in the national interest: [53] – [56].

26    The Minister next considered the expectations of the Australian community at [57] – [62] to which he attached significant weight “towards a finding that it is in the national interest” to cancel the visa.

27    The Minister then considered matters relevant to his discretion to cancel the visa: [66] – [112]. Proposed review grounds two and three focus on the absence of weight that the Minister gave to the legal consequences of his decision at [94] – [106] and the applicant’s fear of harm as part of the extent of impediments if removed at [107].

28    Proposed ground two contends that the Minister irrationally reasoned at [101] – [102]:

    I am aware that the statutory consequence of a decision to cancel [the applicant]'s visa is that, as an unlawful non-citizen, [the applicant] becomes liable under s198 [sic] of the Act to removal from Australia as soon as reasonably practicable, and in the meantime, becomes or continues to be liable to detention under s189 [sic] of the Act, provided that removal is practicable in the reasonably foreseeable future.

    However I have also noted that the requirement to detain [the applicant] in immigration detention and to remove [the applicant] under s198 [sic] would not apply if, following a decision to cancel [the applicant]'s visa, he is granted another visa. I acknowledge that if I decide to cancel [the applicant]'s visa under s501BA [sic], he would be prevented by s501E [sic] of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994).

29    The short point is that the Minister was distracted by the theoretical possibility that detention and removal could be avoided by the making of a protection visa application; whereas the immediate and direct consequence of his decision was susceptibility to detention and removal.

30    Proposed ground three contends that the Minister overlooked a substantial and clearly-articulated argument, misunderstood the case and/ or engaged in illogical reasoning because the Minister deferred the applicant’s fear of harm claims if returned to Lebanon at [107]:

While [the applicant] is not the subject of a protection finding, I note that he has made claims relating to Australia's non-refoulement obligations including that he will be targeted by the victim's family who have links to Hezbollah, he may be subject to honour killings, may be ostracized due to needing mental health treatment and is at general risk of harm in Lebanon. These claims have not yet been assessed. I recognise that [the applicant]'s fear in relation to his possible future treatment in Lebanon in itself constitutes an impediment to their return and have given this weight against cancellation.

31    The applicant’s point is that the Minister then failed to consider those facts as relevant to the extent of impediments if removed: ZKDP v Minister for Immigration and Citizenship [2026] FCA 502 at [24] – [38] (Owens J).

The extension of time application

32    Time may be extended to bring a review application pursuant to s 476A for such period as the Court considers appropriate if (s 477A(2)):

(a)     an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)     the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

33    This power was extensively considered in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579.

34    The first issue is whether the applicant has specified in the application and the supporting affidavit why he considers that it is necessary in the interests of the administration of justice to make the order. As explained in Katoa by Kiefel CJ, Gageler, Keane and Gleeson JJ at [12]:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

35    See also to the same effect, Gordon, Edelman and Steward JJ at [39] – [40].

36    The merits of the proposed grounds will usually be assessed at “a reasonably impressionistic level” (Katoa at [17]), but a Court is not precluded from undertaking a more detailed assessment in appropriate cases as further explained in Katoa by Kiefel CJ, Gageler, Keane and Gleeson JJ at [18]:

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

37    See also Gordon, Edelman and Steward JJ at [49] and [51].

38    Why, then does the applicant consider that it is necessary to extend the time for the making of the application to 6 June 2025? The filed application does not address the issue. The applicant has not made an affidavit. He relies solely on his wife’s affidavit made on 31 May 2025 (with the benefit of assistance from counsel) which was read without objection or requirement for cross-examination. Paragraphs [1] – [4] recite common facts. The balance reads:

5.     My husband and I found it very difficult to know what we could do about the Minister's decision. My husband and I very much opposed this decision and wanted to challenge it. This area of law is very technical and difficult, and it was difficult for my husband to navigate his options due to his difficulties with the English language. I tried to assist in whatever way I could, however I am not a lawyer, and I found it very difficult to know what to do to help him.

6.     My husband and I believed that there was nothing he could do about the Minister's decision under s 501BA. As such my husband and I discussed the matter together, and we decided to he would apply for a protection visa.

7.     My husband applied for a protection visa on 1 August 2024. A delegate for the Minister, refused to grant the protection visa on 30 August 2024 on the basis that my husband did not meet the refugee or complementary protection criteria.

8.     My husband applied for review of the decision to the Administrative Review Tribunal (ART) on 2 September 2024. The Tribunal affirmed the delegates decision on 7 March 2025. On 10 April 2025 my husband lodged a judicial review application with the Federal Circuit and Family Court of Australia.

9.     Around early May 2025, I became aware of the judgment of Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266. When I became aware of this judgment, I formed the view that this judgment might be relevant to my husband's situation.

10.     On 27 May 2025, which was the same day that it was handed down, I became aware of XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553. When I became aware of this judgment, I formed the view that this judgment might be relevant to my husband's situation.

11.     My husband and I consider it significant that the Minister made a decision relating to the best interests of my son [redacted] without being aware of or taking into account that my son was subsequently been diagnosed with ADHD and could potentially have ASD (subject to future assessment). Annexed to this affidavit, and marked with the letters "NT2" is a copy of the paediatrician's diagnosis.

12.     I believe that the fact that my son has ADHD and could potentially be autistic is an important factor, as this means that my son has significant support needs and as such needs to have his father present in his life and needs his father's emotional support. This was a factor relevant to [redacted]'s best interests that was not taken into account by the Minister.

39    Despite a change in legal representation and the effluxion of time since commencement of this proceeding that is all the evidence relied on by the applicant, considered with the expression of his proposed grounds of review:

1.     The Minister’s reasoning, that the Applicant at the time of decision, “continued” to lack insight into the impact of his offending on the victim, was illogical, irrational or unreasonable.

Particulars

(i)     Whilst the Minister had evidence before him about the Applicant’s state of mind as at 2 December 2023, there was no logical basis that allowed the Minister to extrapolate to the time of decision, that the Applicant “continued” to lack insight.

2.     The Minister’s reasoning, to give no weight to the legal consequences of his decision, was illogical, irrational or unreasonable.

Particulars

(i)     The Minister’s reasoning impermissibly conflated the theoretical possibility of making a protection application with the immediate and direct consequences of the Minister’s decision, namely, immediate susceptibility to detention and removal.

(ii)     The Minister could not have logically or reasonably have concluded that immediate susceptibility to detention and removal did not weigh to at least some extent in the Applicant’s favour.

3.     The Minister’s failure to consider the applicant’s fear of harm as part of the “extent of impediments if removed” was:

3.1     an overlooking of relevant facts, or a failure to consider a substantial and clearly-articulated argument, or a misunderstanding of the case;

3.2     legally unreasonable;

3.3     a result of the misapplication of policy the Minister was not bound to apply but nonetheless purported to apply (insofar as it was relevant).

40    Mr Guo concedes (as he must) that the delay period is lengthy. However, he submits that there is some reasonable explanation in that he was not dilatory, in a general sense, in exercising other review rights and subjectively believed that nothing could be done about the Minister’s decision. He pursued the pathway of an application for a protection visa, which the Minister explicitly referenced in his reasons. The submission continues that the explanation, such as it is, is inherently plausible because there is no reference in the decision, or the covering letter from the Minister’s Department, about review pursuant to s 476A of the Act.

41    I am not satisfied that the applicant has provided an adequate explanation for his delay, which in fairness to him should be reckoned from 12 June 2024 to 6 June 2025 - a period of 359 days.

42    The affidavit of the applicant’s wife is largely a series of contentions devoid of supporting evidence. Her evidence at [5] does not address, accepting the applicant disagreed with the Minister’s decision and wished to challenge it, why she and the applicant found “it very difficult to know what we could do about the Minister’s decision”. The applicant with the benefit of competent legal assistance knew exactly what to do in June 2022 (when he applied to revoke the cancellation decision), in September 2023 (when he applied to the Tribunal to review the decision of the Minister’s delegate), in the time leading up to and in the presentation of his case before the Tribunal in January 2024, in August 2024 when he made the decision to apply for a protection visa, when he applied to the ART to review the delegate’s refusal to grant a protection visa and in April 2025 when he applied to the Circuit Court to review the decision of the ART.

43    This demonstrates that the applicant since June 2022, has been able to take legal advice and to pursue reviews of decisions that he disagreed with. The evidence of the applicant’s wife to the effect that this area of the law is “very technical and difficult”, exacerbated by her husband’s difficulties with the English language and her attempts to assist “however I am not a lawyer” cannot be accepted as an adequate explanation for the delay. The issue that should have been addressed in the evidence is why the applicant did not take steps to be informed about his right to seek review of the Minister’s decision and why he chose to apply for a protection visa and failed to apply to this Court pursuant to s 476A of the Act either in the form of review or in conjunction with the protection visa application.

44    The applicant had access to legal advice from a barrister as at 1 August 2024, approximately one month beyond expiry of the 35-day time period on 8 July 2024. He had no difficulty in seeking advice from lawyers in pursuing each of his other review applications commencing in June 2022. There is no evidence about why the applicant and his wife, according to [6] of her affidavit, believed that there was nothing that could be done about the Minister’s decision. The basis of that belief is not disclosed when it is obvious that the applicant could have sought advice. Evidence relevant to the asserted belief would not have disclosed advice subject to legal professional privilege. What is missing in the affidavit is evidence about why no step was taken to become informed about what could be done about the Minister’s decision.

45    The applicant’s wife makes no attempt to explain the delay, beyond asserting that she and the applicant believed that nothing could be done. Within the approximately 11 month period when nothing was done to pursue a s 476A application, the applicant was busy prosecuting his protection visa application with the benefit of legal advice. There is no explanation why the applicant made the choice to pursue that application, rather than apply to review the Minister’s decision. The inference that I draw from the sparse evidence is that the applicant made a deliberate choice to pursue that avenue to resist deportation. Further, I accept the Minister’s submission that the applicant’s belated attempt to pursue the option of review in this Court after refusal of his protection visa application is inconsistent with the policy of the prescribed time limit: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 481 (McHugh J).

46    The evidence of the applicant’s wife at [9] – [10] is of no assistance, which Mr Guo properly conceded. The decisions referred to were delivered respectively on 27 March and 27 May 2025, and as such do not explain the applicant’s delay to those dates. Moreover, despite her evidence at [5] and [6] about the difficulties of understanding what could be done, by an undisclosed pathway the applicant’s wife somehow became aware of these decisions and formed the view that they might be relevant to the applicant’s situation. There is no explanation of how she became aware or what view she formed and when. Further, as the Minister correctly submits, neither case broke new ground – each is an example of the application of well understood principles relating to a rationality and logical reasoning and which are necessarily fact-specific.

47    It has been open to the applicant with the benefit of advice from his lawyers in this proceeding to supplement these obvious deficiencies, either by making his own affidavit or requesting his wife to make a supplementary affidavit. There has been plenty of time to do so since the commencement of this proceeding in June 2025. There is no explanation as to why this was not done.

48    I do not accept the submission of Mr Guo to the effect that the Minister could have cross-examined the applicant’s wife about the deficiencies in the explanation that the Minister now relies on. The Minister does not carry any onus to explain the delay.

49    Accordingly, I find that the applicant’s explanation for the entire period of delay is manifestly inadequate.

50    The next consideration is prejudice. The applicant will suffer prejudice if time is not extended in that he will lose the opportunity of challenging the Minister’s decision. He will suffer prejudice if he is ultimately deported. His family will suffer prejudice if he is separated from them. More specifically, the applicant’s wife at [11] – [12] of her affidavit identifies prejudice to their children on medical grounds. None of that is disputed and weighs in favour of an extension of time. It is not, however, determinative because removal from Australia is the consequence of the proper administration of the Act: BQNZ v Minister for Immigration and Citizenship [2026] FCA 857 at [36] (Kennett J).

51    The Minister, properly, does not claim that specific prejudice will flow from an extension. However, the Minister emphasises the public interest in the timely finalisation of administrative decisions, which I regard as outweighed in this case by the specific prejudice the applicant and his family will suffer if the extension is refused.

52    The next relevant consideration is the merit of the proposed grounds. The grounds have been fully argued, well beyond an impressionistic analysis. The applicant’s delay is lengthy and unsatisfactorily explained, which is one circumstance usually calling for more than demonstration of an arguable case to persuade the Court that it is necessary in the interests of the administration of justice to grant the extension: Katoa at [18]. I do not, however, proceed on the basis that in the circumstances of this case the period of delay requires demonstration that the proposed grounds are strong or exceptional. In my view there is much force in what Kennett J said in BQNZ at [25]:

Although it is common for an extension of time application to be listed for hearing at the same time as the substantive proceeding, the question as to where the interests of the administration of justice lie needs to be addressed at an interlocutory stage; that is, at a point anterior to the hearing of the substantive matter. If the case is heard and considered as if on a final basis and the judge comes to the view that the applicant should ultimately not succeed, that conclusion may not be sufficient in itself to provide a negative answer the anterior question whether it is necessary in the interests of justice for time to be extended. Among other things, answering that question negatively and refusing to extend time results in an interlocutory judgment that cannot be appealed from without leave.

53    In my view the proposed grounds are not of sufficient merit to support the conclusion that it is in the interests of the administration of justice to extend time in this case of significant and unsatisfactorily explained delay.

54    The submissions in support of proposed ground one focus intensely on the Minister’s reasons at [42], [44], [46], [48], [49] and [51]. That which is submitted to be the “vice” is that the Minister concluded in June 2024 that the applicant “had, and continues to have, limited insight into the impact of his offending” ([48]) based on a statement he made on 2 December 2023 for the purposes of the Tribunal review proceeding. There are other examples, identified in submissions, that the Minister concluded that he could not in June 2024 be satisfied that the risk of offending was low ([42]), that the applicant did not take any responsibility or express remorse until 2 December 2023 ([47]) and nor was the Minister satisfied that the applicant was sufficiently rehabilitated or had taken sufficient rehabilitative steps to address his offending conduct ([52]).

55    The crux of Mr Guo’s submission in writing is:

    Seven months had passed between the applicant expressing his state of mind and the Minister making his decision. It may have been open for the Minister to say, of the December 2023 statement, that the statement at that time supported a conclusion that the applicant had limited insight into the impact of his offending conduct on the victim, as at that time. But the Minister did not have any facts before him and to which he referred in his reasons which allowed him to conclude that seven months later, the applicant “continue[d] to have” limited insight. The applicant had, after all, just gone through a salutary experience in the Tribunal, having faced the very real possibility of being kicked out of the country, to put it colloquially, because of the offences.

    The Minister’s choice of words was no small slip or mere instance of unhappy phrasing. The Minister’s reference to “these statements” (i.e. the separate sentences in the 2 December 2023 document) “indicate that he had, and continues to have, limited insight” was a conscious double-barrelled expression. The lack of reference to any facts that might have supported an inferential extrapolation meant that the statement that the applicant “continued” to have limited insight was outside the bounds of logical reasoning, because of that lack of evidence: compare GRCF at [54]. The conclusion about the alleged continuing lack of insight was “not based on findings or inferences of fact supported by logical grounds”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [35] (Allsop CJ, Besanko and O’Callaghan JJ).

56    The submission fails to account for how the Minister reasoned to conclude in June 2024 that the applicant continues to have limited insight into the impact and consequences of his offending. As Mr Bevan SC for the Minister correctly submitted, the assessment of the national interest is broad, evaluative and essentially a political question: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [43] – [44] (Derrington and Hespe JJ). The Minister is not obliged to afford procedural fairness before exercising the power with the consequence that the circumstances may change over time and the Minister may make a decision on dated information: Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6; (2026) 315 FCR 159 at [47] (Charlesworth, Kyrou and Neskovcin JJ).

57    Further, as Stewart J observed in Piec v Minister for Immigration and Citizenship [2026] FCA 869 at [38], the unreasonableness conclusion reached by Bennett J in GRCF (and similarly in subsequent cases where the Minister has made findings on dated information):

In summary, those cases stand for the proposition that an assessment of circumstances as at the time of the s 501BA decision that is based on evidence of circumstances at some significantly earlier time, or that assumes the circumstances at both points in time to be the same, may be legally unreasonable, but that each case will turn on its own facts and circumstances. Inevitably, each case must turn on the particular reasoning process at issue.

58    I agree. I add that the reasoning of the Full Court in SSVJ at [42] – [48] which Mr Guo relies on is an example of the fact-specific analysis that leads to a conclusion of illogical reasoning of the type that was found in GRCF. It is not a statement of general principle to the effect that findings based on dated information are products of irrational or illogical reasoning. What must be considered is the importance of the findings and how they are deployed. So much is clear from the analysis of the Full Court at [45] – [48].

59    This proposed ground falls well short of establishing legal unreasonableness, irrationality or illogicality. As succinctly explained by Steward J in Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; (2024) 426 ALR 587 at [27]:

It is unnecessary to repeat the jurisprudence in this area. The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

60    In this case there is an exposed rational basis for the impugned findings of the Minister when, as always, the reasons are read in entirety and in context. A flaw in the applicant’s argument is the minute dissection of the reasons. The Minister addressed the protection of the Australian community as relevant to the national interest from [18]. He made findings to the effect that the applicant’s offending was very serious: [19] – [33]. Within that part of the reasons, the Minister made various findings (which the applicant does not challenge) about the nature and circumstances of the offending and the impact on the victim.

61    From there, the Minister assessed the risk to the Australian community and considered that any future offending of a similar nature or seriousness by the applicant would have the potential to cause serious psychological injury to members of the Australian community: [34]. The Minister then assessed the likelihood of the applicant’s reoffending, commencing at [35] where he placed particular emphasis on the applicant’s refusal to accept that he was guilty and failed to express any remorse or acknowledge the consequences of his conduct until 2 December 2023: [40]. At [42] the Minister noted that despite his ultimate acceptance of responsibility, he failed to provide any explanation for the cause of his conduct and on that basis the Minister could not be satisfied that the risk of reoffending was low [42]. The Minister then made findings about the applicant’s lack of remorse between April 2022 and December 2023: [44] – [47].

62    At [48] the Minister commenced by finding that the applicant’s statement of 2 December 2023 focused only upon his experience of incarceration and his future intention to abide by the law. The point the Minister then made is that whilst the applicant promised to abide by the law in the future, he did so by reference to the impact of his incarceration which in the Minister’s view was undermined by his inability to accept the very serious impacts of his offending on his victim. In consequence “these statements” led the Minister to conclude that he had and continues to have limited insight. In other words, he had plenty of time and opportunity to acknowledge and accept the impact on the child but had not. When all these matters are considered, there is a logical basis for the continued limited insight conclusion. Accordingly, I am not satisfied that this ground has reasonable prospects of success.

63    The focus of proposed ground two is the Minister’s consideration that the applicant may apply for a protection visa when considering the legal consequences of the decision at [101] – [106]. Particular attention is directed to [106] where the Minister concluded that “pending any future full assessment” of any possible protection visa claim, he attached no weight to the legal consequences of his decision.

64    The complaint is also one of illogical, irrational or unreasonable reasoning. The argument is that the Minister understood that the immediate consequence of his decision to cancel the visa was detention and removal from Australia but was then distracted from giving this consideration any weight by focusing on the theoretical possibility that detention and removal could be avoided by the making of a protection visa application. The immediate consequence of the Minister’s decision was adverse to the applicant and on that basis the Minister could not logically or reasonably have concluded that it did not weigh at least to some extent in the applicant’s favour.

65    Mr Bevan accepts the sentence structure of [106] is awkward: what is meant by “pending” a future possible outcome? However, and once again when the reasons are read in full, the Minister meant no more than the applicant’s detention may be affected by the outcome of any protection visa application that he was minded to make.

66    I accept the Minister’s submission. The awkwardness in [106] does not rise near to the threshold required of irrational, illogical or unreasonable reasoning. The Minister correctly stated at [94] that pursuant to s 198 of the Act unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention provided that removal is practicable in the reasonably foreseeable future. The Minister also correctly understood that by s 197C(1) it is irrelevant whether Australia has a non-refoulment obligations in respect of the unlawful non-citizen. At [95] the Minister correctly summarised the effect of s 197C(3), that s 198 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, except in limited circumstances.

67    At [98], the Minister recorded the applicant’s submission that he has a general fear for his safety and that there is a real risk of death should he return to Lebanon. At [99] the Minister accepted that the nature of these claims “indicates a potential for Australia’s international non-refoulement obligations to be engaged”. At [100] the Minister recorded that it is open to the applicant to make an application for a protection visa and, if he did, his claims would then be fully assessed. At [101] – [105] the Minister set out his understanding, and made findings, about the interrelationship between the assessment of any application for a protection visa and the consequences of the cancellation of his visa.

68    When all of this is read and understood in context, it was a matter for the Minister to decide whether he would give any weight to the legal consequences of his decision to cancel the visa. The applicant’s reliance by analogy on Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCA 1273 is misplaced. That case concerned review of a decision of the Tribunal concerning revocation under s 501CA(4) of the Act and whether the Tribunal acted on a misunderstanding of the legal consequences of its decision. The Minister’s power to set aside a decision of the Tribunal and cancel a visa if he is satisfied that cancellation is in the national interest is a distinctly different power. The applicant’s arguments attack the fact that the Minister chose not to give weight to the legal consequences of his decision. The proposed ground falls manifestly short of establishing reasoning which makes no sense. Put differently, I am not satisfied that the ground establishes that the Minister’s conclusion is one that no rational or logical Minister could have arrived at on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). As such the ground has no reasonable prospect of success.

69    Proposed ground three frames arguments concerning how the Minister considered the extent of impediments if the applicant was removed from Australia: [103] – [114]. The Minister was entitled to defer consideration of the applicant’s expressed fear of harm if returned to Lebanon to the extent that they may have given rise to legal consequences and non-refoulement obligations, but the submission is that the Minister failed to consider the same facts as relevant to the extent of impediments if removed.

70    The three strands to this submission are the Minister: (1) overlooked relevant facts; (2) failed to consider a substantial and clearly-articulated argument; or (3) misunderstood the applicant’s case. The submission continues that the errors are revealed once it is understood that the Minister “clearly borrowed” this from Direction 110, even though he is not bound by it. However, having decided to apply these criteria as relevant to s 501BA, “it was not open to him to overlook, or fail to consider, the same factual matrix in relation to that consideration, as he had considered but deferred in relation to another consideration”.

71    The applicant relies on ZKDP at [24] – [38]. In substance under s 501CA(4) and in the application of Direction 110 an applicant’s claim that they will suffer harm if returned to a particular country must be considered on its own merits and not simply deferred for assessment if a protection visa application is made: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [39] (Kiefel CJ, Keane, Gordon and Steward JJ).

72    This proposed ground has no reasonable prospect of success. The Minister did not overlook this aspect of the applicant’s claims at [107]: in fact he recognised and gave weight to the applicant’s fear about possible future treatment in Lebanon against cancellation. ZKDP is not authority for what must be considered by the Minister in exercising the power at s 501BA: Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192; (2025) 314 FCR 376 at [46] (Kyrou and Needham JJ). The Minister was not bound to apply Direction 110 despite referencing a consideration expressed in it. The Minister proceeded by reference to the distinctly different national interest assessment at s 501BA. There is nothing irrational, illogical or unreasonable in what the Minister did in reaching his ultimate conclusion at [116] – [120] that the seriousness of the applicant’s crimes and the risk to the Australian community favoured cancellation in the national interest and were not outweighed by the considerations against cancellation. That conclusion was plainly open to the Minister.

73    Turning to my discretion, I am not satisfied that the applicant has established that it is necessary in the interests of justice to grant the extension. The matters in favour of an extension are substantially outweighed by the length of time, the failure to provide an adequate explanation for the delay and my view that the proposed review grounds are not reasonably arguable. There is no reason why costs do not follow the event.

Associate:

Dated:    31 July 2026