Federal Court of Australia

Lim v Assistant Minister for Citizenship, Customs, and Multicultural Affairs [2026] FCA 1179

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 11 May 2026 be dismissed.

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

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an application for orders to set aside an order made by the respondent (‘the Minister’) under s 501BA of the Migration Act 1958 (Cth) (‘the Act’) to cancel a visa in the national interest. Section 501BA provides:

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

(1)     This section applies if:

(a)    a delegate of the Minister; or

(b)    the ART;

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

Action by Minister—natural justice does not apply

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

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

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

(ii)     paragraph 501(6)(e); and

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

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

Minister’s exercise of power

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

Decision not reviewable by application under Part 5

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

Note: For notification of decisions under subsection (2), see section 501G.

2    Section 501BA(1)(b) was enlivened in this case. This is because on 3 March 2025 the Administrative Review Tribunal (‘the Tribunal’) set aside a decision under s 501CA by a delegate of the Minister not to revoke an earlier decision cancelling the applicant’s class BB Subclass 155 Five Year Resident Return visa. The Tribunal’s decision had the effect of reinstating the applicant’s visa.

3    The power to set aside the Tribunal’s decision in s 501BA(2) may be exercised where the Minister is satisfied both that a person does not pass the character test (s 501BA(2)(a)) and that the cancellation of the visa would be in the national interest (s 501BA(2)(b)).

4    There is no dispute that the applicant did not pass the character test. This is because he was convicted in District Court of New South Wales on 13 December 2019 of drug supply offences and sentenced to an aggregate term of seven years and six months imprisonment. Being a term of imprisonment of more than 12 months, the applicant was deemed to have a ‘substantial criminal record’ by force of s 501(7)(c). Having a substantial criminal record he was then deemed to fail the character test by s 501(6)(a). It will be observed that s 501(7)(c) is one of the provisions nominated in s 501BA(2)(a).

5    The field of debate for the present application does not concern the applicant’s failure to pass the character test which is merely contextual. Rather, the applicant seeks to challenge the Minister’s conclusion that he was satisfied under s 501BA(2)(b) that cancellation of the applicant’s visa was in the national interest.

6    That the Minister formed that state of satisfaction is apparent from an instrument of decision signed by the Minister and dated 25 August 2025. The applicant submits that the reasons given by the Minister for forming that state of satisfaction betray the presence of two jurisdictional errors.

Ground One

7    The first suggested error turns on the Minister’s treatment of the applicant’s claim to have been sexually assaulted while in juvenile detention. The applicant’s case about this appears from the personal circumstances form he submitted to the delegate who considered (and rejected) his application to revoke the automatic cancellation of his visa. The form was also before the Tribunal and the Minister. In the form, the applicant submitted that he had been sexually assaulted by correctional services officers while in juvenile detention. The applicant says that because of this incident he started to take drugs which he said was a means to minimise the trauma he faced while in the juvenile correction centre. As a result, he became addicted to drugs and started committing further crimes to support his drug habit.

8    The applicant’s criminal record shows a long history of crime which in very large part related to addiction to methamphetamine. The forensic relevance of the sexual assault argument was to demonstrate that the origin of the applicant’s criminal history had been his sexual assault by the corrections officers. It was capable of bearing upon his moral culpability.

9    The applicant was examined by a clinical psychologist, Sam Borenstein (in February 2007) and by a registered psychologist, Hasan Cinar (in August 2019). The reports prepared by these psychologists record no history from the applicant of having been sexually assaulted while in juvenile detention. Mr Borenstein’s report was before the Tribunal but not the Minister.

10    The applicant’s criminal history was set out in two documents which were before each of the decision-makers. The first is a report by the Australian Criminal Intelligence Commission which was produced on 6 March 2025. At note (4) the report states that the report may contain court convictions but also findings of guilt where no conviction has been recorded. It then sets out in some detail the applicant’s history of adult offending. This includes first instance impositions of sentences but also the result of appellate proceedings.

11    Although the history of adult offending records the applicant as having been sentenced to various terms of imprisonment, these entries do not record the formal fact that he had been convicted of the offence for which he was being sentenced. Mr McCaw, for the applicant, submitted that in New South Wales it was not possible for an adult to be sentenced to a term of imprisonment unless a conviction was recorded. I accept this submission which is consistent with s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides for non-imprisonment orders that may be imposed where no conviction is recorded.

12    Mr McCaw then submitted that it could be inferred from the record that for each of the offences where the applicant had been sentenced to a term of imprisonment as an adult, he had also been convicted of the offence to which that sentence related. I accept this submission.

13    The record also includes the penalties which were imposed on the applicant as a juvenile offender by the Sutherland Local Court (which constituted the Children’s Court). The sentences were imposed on him on 13 August 2002 and 12 March 2002. None involved the imposition of a term of imprisonment. As with the adult history, the record does not include the formal fact that the applicant had been convicted of the offence to which each penalty related.

14    It is possible for the Children’s Court to proceed to sentence a child offender without recording a conviction (including to a term of imprisonment: Children (Criminal Proceedings) Act 1987 (NSW) s 33(g)). So much appears from s 14 that Act which provides:

14 Recording of conviction

(1)     Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:

(a)    shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and

(b)    may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.

(2)     Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily.

15    The applicant was born in September 1985 so that at the time of his two appearances before the Children’s Court in 2002 he was more than sixteen years old. Section 14(1)(a) could not apply in that circumstance but because of s 14(1)(b) it was possible for the magistrates who found the offences proven not to record those convictions. This was, however, a matter of discretion.

16    It is not possible to discern from the report whether the magistrates did, in fact, record the convictions. This is because, as with section of the report dealing with his adult offences, only the sentences imposed are recorded.

17    While it is not possible to discern from the record whether a conviction was recorded it is possible to see that none of the sentences involved the imposition of a custodial sentence. The potential for this to be inconsistent with the applicant’s argument that he was sexually assaulted while in juvenile detention may, at this point, be noted along with Mr McCaw’s response to it. This was that it was possible that the applicant had been held on remand without bail before the sentences were imposed.

18    The second document is a print-out from the records of the New South Wales Department of Corrective Services. It contains a record of the applicant’s convictions, sentences and appeals. It contains no record of any convictions for the applicant while he was a juvenile. When this report is combined with the first report, it may be inferred that for the offences for which he was sentenced as a child, no conviction was recorded as a result of the magistrates deciding under s 14(1)(b) of the Children (Criminal Proceedings) Act 1987 only to find the offences proven without recording a conviction. If a conviction had been recorded, it would have appeared in this record.

19    The Minister dealt with the applicant’s case insofar as it was based on the sexual assault at [63]-[67]. The critical part of these reasoning is at [65]-[67]:

[65] I note that there is no mention of Mr LIM's sexual assault either in Mr Cinar's assessment (Attachment I) or in the sentencing remarks (Attachments B1, C and D). Further, I refer to the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 5 February 2020 which does not show that Mr LIM spent time in custody before he was 20 years old, on the face of it, contradicting his assertion he spent time in juvenile detention Attachment C.

[66] Similarly, the ART reports that Mr LIM ‘gave evidence that he was sexually assaulted while in juvenile detention', however, the psychological assessment and report provided in February clinical psychologist Sam Borenstein makes no reference to Mr LIM having been sexually assaulted Attachment N.

[67] I acknowledge that many victims of sexual assault may not disclose this until many years later, however on the evidence before me there is significant doubt as to Mr LIM's account and I therefore accord this factor little weight.

20    Mr McCaw called attention to the second sentence of [65] and, in particular, to the Minister’s conclusion that the second record referred to above (that of the Department of Corrective Services) contradicted the applicant’s assertion that he had spent time in juvenile detention. He submitted that this did not follow. The fact that there was no reference in that record to his child offences was explicable on the basis of s 14(1)(b) of the Children (Criminal Proceedings) Act 1987 and, in particular, to the fact that the magistrates had not recorded any convictions.

21    It followed, so the argument ran, that the Minister was wrong to think that the record was inconsistent with his case that he had been sexually assaulted while in juvenile detention.

22    I agree that the reasoning of the Minister was erroneous but not in a way which was material. The applicant is correct that one cannot infer from the record of the Department of Corrective Services that the applicant had not been in juvenile detention. It is not adequate for that purpose having regard to s 14(1)(b) of the Children (Criminal Proceedings) Act 1987. The Minister should instead have referred not only to that report but also to the report of the Australian Criminal Intelligence Commission. Had he done so, he would have observed that there was no evidence in the two sentencing records before him that the applicant had ever been sentenced as a juvenile to a term of imprisonment. As such, any error in only referring to the report of the Department of Corrective Services was immaterial.

23    In response to this problem, Mr McCaw submitted that it was possible that the applicant had been arrested for the offences he committed as a child and had been denied bail pending the hearing of the charges before the Children’s Court. On this view, he would have been on remand in juvenile detention, and the sexual assault would still have been possible.

24    The difficulty with this contention is that it lies outside Ground 1 of the amended originating application. It is in these terms:

1.    The Assistant Minister’s Decision was affected by jurisdictional error because it considered an irrelevant consideration, namely that the Applicant had not been in juvenile detention, when there was no evidence that he had not been in juvenile detention.

Particulars

a.    At [65], the Assistant Minister found that the Applicant did not spend any time in custody before he was 20 years old.

b.    That finding was based on a document identified as the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 5 February 2020 (the Report).

c.    The Report only records periods that Applicant was in custody referrable to matters where a conviction was recorded.

d.    The Report was not a complete record of all the occasions where the Applicant was in custody.

e.    The Applicant has antecedents for matters that were found proven when he was a child.

f.    The Applicant was not convicted of any offences that occurred when he was a child.

g.    There was no evidence before the Assistant Minister that indicated whether the Applicant had been in custody for offences that occurred when the applicant was a child that were found proven.

h.    The Assistant Minister’s error was material

25    Ground 1(g) makes clear that the applicant’s case is concerned with an error by the Minister in his reasoning insofar as it related to the applicant being in custody for offences which had been found proven. Ground 1(g) does not put a case that the Minister had erred by assuming that the applicant had never been on remand for those offences.

26    Thus, I do not think that Mr McGaw’s responsive argument can be accepted without an application to amend the amended originating application. Such an application was not made.

27    In any event, on the assumption in the applicant’s favour that [65] does disclose a jurisdictional error, I do not accept in light of the report of the Australian Criminal Intelligence Commission (which shows no periods of imprisonment as a juvenile) that there was a possibility which was not improbable that the Minister’s decision could have been different but for the error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [36] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ and Beech-Jones J agreeing.

28    In reaching that conclusion, I have assumed in the applicant’s favour that the error at [65] involved a jurisdictional error. However, I do not think that assumption is correct. The applicant’s case on jurisdictional error is that the error at [65] involved the Minister taking into account an irrelevant consideration. It may be accepted that a decision-maker taking into account an irrelevant consideration is an established and orthodox ground of review. However, in the context of this ground of review the word ‘irrelevant’ does not bear its ordinary meaning in the sense of being generally disconnected with the task at hand. Rather, the ground is concerned with the decision-maker considering a matter when they are prohibited from doing so by the proper construction of the statutory provision conferring the relevant power.

29    Where, as in the case of s 501BA(2), a statute confers a discretion which in its terms is unconfined ‘the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard’: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 (‘Peko-Wallsend’) at 40 per Mason J.

30    According to the terms of Ground 1, the suggested irrelevant consideration is the fact that the applicant had not been in juvenile detention. The Minister is not explicitly prohibited from taking that fact into account. Subject to one matter, there is nothing in the subject-matter, scope or purpose of the Act which leads to the implication that this fact was not to be taken into account in the exercise of the power under s 501BA(2).

31    The one matter is Mr McCaw’s submission (made in response to a question asked about both Grounds 1 and 2) that visa cancellation is a serious business with substantial consequences for the individual (which I accept) and therefore care needs to be taken in the making of such a decision. I do not think that the submission that care needs to be taken in the making of such a decision is sufficient to show that it is implied from the Act that a conclusion which results from the want of such care involves thereby the taking into account of a mandatory irrelevant consideration.

32    Perhaps to generalise Mr McCaw’s submission somewhat, while it may be accepted that the power in s 501BA is to be exercised rationally, a conclusion reached in the course of making a decision which is irrational, is not a mandatory irrelevant consideration. To accept otherwise, would be to collapse the rationality ground of review into the irrelevant considerations ground. The grounds are distinct and I do not accept that they are interchangeable in the way in which the applicant’s case assumes.

33    I would therefore reject Ground 1.

34    For completeness, I should note the submission of Mr Johnson who appeared for the Minister that the finding at [65] was not that the report of the Department of Corrective Services contradicted the applicant’s account but only that ‘on the face of it’ it did so. This was connected with the observations at [67] that there were ‘significant doubts’ about the applicant’s account. Mr Johnson emphasised that there was, in fact, no finding of contradiction and the Minister’s ultimate conclusion was not wholesale rejection of the account but rather only a decision to ‘afford this factor little weight’. Since it is not necessary to express a view on this submission, it is not necessary to explore whether it would be rational for the Minister to draw conclusions about the weight to be given to factual evidence without making factual findings, although this is not self-evident.

Ground Two

35    This ground is concerned with an apparent internal consistency problem in the Minister’s reasons. At [81]-[97] of his statement of reasons the Minister decided to examine the applicant’s rehabilitation from drug addiction. The Minister surveyed the various steps that the applicant had taken to deal with his addiction. At the end of this section, the Minister then referred to a submission which the applicant had made to the Tribunal. This submission was made by applicant in the context of explaining what the consequences to him would be if he were repatriated to Malaysia where he had not lived since he was three years old. The Tribunal recorded the submission at [90]:

Section 15 of the Dangerous Drugs Act provides that people who are guilty of offences are liable on conviction to a fine not exceeding 5000 ringgit or a term of up to two-years imprisonment. Despite being drug-free for over two years, the Applicant contends that his past addiction or consumption could expose him to further punishment under these laws. He also fears that absent his support network and the general circumstances he can expect to encounter in Malaysia, he may be subject to exploitation or return to using drugs. The Applicant has not provided any information to substantiate these claims.

36    Ultimately, the Tribunal did not deal with the submission. However, in his decision the Minister picked this paragraph up as proof that the applicant was not fully rehabilitated. The reasoning appears at [97] of the statement of reasons:

I also note with concern that Mr LIM 'fears' that if he returns to Malaysia, he may be 'subject to exploitation or return to using drugs' Attachment N. I am concerned by Mr LIM's suggestion he may relapse, as this indicates to me he is not fully rehabilitated and still has progress to make in terms of his rehabilitation.

37    This then led to this conclusion at [109]:

When I consider his long history of drug use, which has not been curtailed by previous terms of imprisonment or visa cancellation, I am not satisfied that Mr LIM's limited plans and intentions are sufficient to avoid a return to drug use and offending. Therefore, I reject the ART's conclusion and find that as Mr LIM has not been deterred by the punishments imposed upon him to date, the risk of re-offending is not mitigated in this case.

38    On the other hand, when dealing with the applicant’s submission that he had no real support in Malaysia and that he faced the risk of relapse and criminal punishment in that country the Minister said this at [169]:

However, I find Mr LIM is relatively young and despite his previous bouts of insobriety, he is otherwise a healthy man who can reach out to his sister for support on return. I also find that Mr LIM will not have issues with the strict treatment of drug users in Malaysia if he abides by his intentions to not return to drug use. I find that difficulties Mr LIM may encounter are not insurmountable.

39    The applicant draws attention to the fact that the Minister appears to accept that he will not have an issue with relapse if he is returned to Malaysia (at [169]) but finds that he will have such an issue if he remains in Australia (at [97]). Put another way, what is not ‘insurmountable’ if he is returned to Malaysia is apparently insurmountable if he remains in Australia.

40    There is much to be said for the view that the Minister cannot have it both ways. I am unpersuaded by Mr Johnson’s submission that the contexts of the two paragraphs are different or that the levels of support differ. The contexts are, it is true, different but not relevantly and the issue of the different levels of support in the two countries appears to trend in a direction opposite to that which would show the Minister’s reasoning to be rational.

41    It is not necessary, however, to form a concluded view about this. Even assuming the Minister’s reasoning may on its face (cf. [65]) appear irrational, what can be done with it is confined by the terms of Ground 2 which identify the challenge as being concerned with a failure to take into account a relevant consideration, namely the consideration ‘that the Applicant feared his life would be at risk if he was returned to Malaysia’. Ground 2(e) was put as:

The Minister did not assess or consider whether the Applicant’s fears were well-founded, whether the risk of harm in fact existed, or make any assessment of its nature, magnitude, or likelihood, if the Applicant did relapse.

42    The applicant has not established why those matters, or the applicant’s fear of harm generally, were matters that the Minister was required to take into account by his statutory task: Peko-Wallsend at 40 per Mason J.

43    Further, as Mr McCaw acknowledged, it is evident that the Minister did consider, at least at some level, the extent of the impediments to rehabilitation that the applicant would face if he were removed to Malaysia. The applicant’s complaint is that the way in which the Minister did so was inconsistent with his earlier finding. This is in substance an irrationality argument and for the reasons I have given in relation to Ground 1, I do not accept that a rationality case can be run as a failure to take into account a relevant consideration. Accordingly Ground 2 must also fail.

44    For those reasons, the application will be dismissed with costs.

Associate:

Dated:    21 August 2026