Federal Court of Australia

Farrugia v Minister for Immigration and Multicultural Affairs [2026] FCA 1201

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 22 August 2025 is dismissed.

2.    The applicant pay the respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    By an amended originating application filed on 22 August 2025, the applicant sought judicial review of a decision of the Assistant Minister for Citizenship and Multicultural Affairs made on 25 March 2025 pursuant to s 501BA(2) of the Migration Act 1958 (Cth). By that decision, the Assistant Minister set aside a decision of the then Administrative Appeals Tribunal dated 3 June 2024 and cancelled the applicant’s Class BF Transitional (Permanent) visa.

2    The application, which was made under s 476A of the Migration Act, raised two grounds of review, first, that the Assistant Minister did not consider the documents provided to them by the Department of Home Affairs and, second, that the Assistant Minister made a finding that was illogical or irrational, in that there was no evidence to support the finding that the applicant “will have access to health and welfare services in Malta on the same basis as other nationals”. The second ground of review was modified at the hearing, when leading counsel for the applicant confirmed that the applicant no longer maintained that there was no evidence to support the impugned finding insofar as it related to access to health, as opposed to welfare, services in Malta.

3    For the reasons set out below, the grounds of review have no merit and the application should be dismissed.

Background

4    The applicant arrived in Australia in 1974 from Malta as a 17-month-old infant.

5    The applicant has a lengthy criminal history, commencing in 1990. Among other offences, the applicant’s history of criminal offences includes six “prohibited person possess firearm” offences from 2000 to 2009, “kidnapping and reckless conduct endangering life” for which he was sentenced to four years’ imprisonment in 2003, and trafficking a commercial quantity of pseudoephedrine for which he was sentenced to five years’ imprisonment in 2008.

6    On 23 February 2005 and 3 February 2011, consideration was given to cancelling the applicant’s visa. Both occasions resulted in only a warning being issued. On the second occasion, the applicant was given a formal written warning by the Department, advising the applicant that by continuing to commit crimes, “he is placing in jeopardy his right to remain in Australia. [The applicant] has exhausted any goodwill and would be well advised not to risk further consideration of his visa by re-offending”.

7    The instant visa cancellation came about because the applicant was convicted in the County Court of Victoria of possession of a firearm (namely, a semi-automatic rifle) and sentenced, on 25 May 2023, to 39 months’ imprisonment. On 4 July 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act while he was serving that sentence of imprisonment.

8    The applicant exercised his statutory right to seek to have that decision revoked. However, on 12 March 2024, a delegate of the respondent, the Minister for Citizenship and Multicultural Affairs, decided not to revoke the visa cancellation decision under s 501CA(4) of the Migration Act.

9    The applicant sought merits review of the delegate’s decision in the Tribunal. On 3 June 2024, the Tribunal set aside the delegate’s decision and substituted it with a decision revoking the mandatory cancellation of the visa, having regard to the applicant’s ties to Australia and the best interests of the applicant’s child, who was a minor.

10    On 21 February 2025, the matter was referred to the Assistant Minister to consider whether to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA(2).

11    Although s 501BA(3) excludes the rules of natural justice before deciding whether to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA(2), the applicant was afforded an opportunity to provide a response.

12    On 20 September 2024, the applicant provided submissions and material in response to a request of 24 June 2024. Earlier, on 5 June 2024, the applicant had made unsolicited submissions to the Minister in response to media reporting of an apprehended s 501BA decision.

13    On 9 March 2025, the Assistant Minister made the s 501BA decision which is the subject of this application, and notified the applicant on 25 March 2025. The Assistant Minister’s decision, and the reasons for it, are set out below. For the purposes of the Migration Act, the Assistant Minister is the Minister: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [17] (Gleeson CJ). In these reasons, I will refer to the Assistant Minister as the Minister.

The statutory provisions

14    Under s 501(3A) of the Migration Act, the Minister must cancel a visa granted to a non-citizen if the Minister is satisfied that the non-citizen does not pass the character test, because of the operation of s 501(6)(a) or (e), and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. Sections 501(6)(a) and 501(7)(c) provide that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more. It was not in dispute that, at the time the applicant’s visa was cancelled on 4 July 2023, the applicant did not pass the character test because he was sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and 501(7)(c)) and he was serving a term of imprisonment on a full-time basis (s 501(3A)(b)).

15    Under s 501CA(3), the Minister must, as soon as practicable after a cancellation of a visa under s 501(3A), provide to the non-citizen information about the cancellation decision and invite them to make representations to the Minister about revocation of the cancellation decision. At the relevant time, s 500(1)(ba) in effect provided that, if the Minister decides not to revoke the cancellation decision under s 501CA(4), the non-citizen could apply to the Tribunal for merits review of the non-revocation decision.

16    Section 501BA of the Migration Act conferred power upon the Minister to set aside a decision of the Tribunal made under s 501CA and cancel a person’s visa. On 14 October 2024, the Administrative Review Tribunal (ART) was established and the reference to the Tribunal was amended to refer to the ART. However, s 501BA continues to apply to decisions of the Tribunal by reason of the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) and Item 26 of Schedule 16 to that Act.

17    At the time of the impugned decision, s 501BA provided as follows:

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

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the 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.

relevant principles

18    Under s 501BA(2), the Minister is required to form a state of mind about the national interest at the time that the power is exercised: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299; [2022] FCA 1209 at [45] and [48] (Charlesworth J). Once the Minister is satisfied that the cancellation is in the national interest, the Minister has a discretion and may set aside the original decision and cancel a visa that has been granted. The question of what is in the national interest is broad and evaluative, and is entrusted by the legislature to the Minister to determine according to their satisfaction: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [89] (French, O'Loughlin and Whitlam JJ).

19    The Migration Act does not require the Minister to have regard to any particular matter when forming the requisite state of satisfaction as to whether the cancellation is in the national interest under s 501BA(2)(b) or in exercising the discretion under s 501BA(2): Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 at [44] (Derrington, Feutrill and Hespe JJ); Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at [61] (McKerracher, Markovic and SC Derrington JJ).

20    In determining whether or not to cancel a visa under s 501BA of the Migration Act, the Minister is required to engage in an active intellectual process in considering the merits of the case: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [33], [43]–[47] (Griffiths, White and Bromwich JJ). Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist their decision-making, as well as other matters which arise from the relevant statutory context. A finding that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the applicant bears the onus of proof: Carrascalao at [47]–[48]; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

21    Where a Minister exercises a power personally, the law recognises that they do not work alone but make decisions with the assistance of their department. The law treats the collective knowledge and experience of the department as the Minister’s own knowledge and experience: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1; [2024] HCA 11 at [18] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ), in relation to a decision made under s 501CA(4) of the Migration Act, citing Bushell v Environment Secretary [1981] AC 75 at 95 (Lord Diplock). The foregoing permits a Minister to rely on their department to sift and organise materials, prepare summaries and prioritise correspondence and, generally, there is no obligation on a Minister to read every document in order to exercise a power personally: McQueen at [19], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 65–6 (Brennan J). A Minister may discharge their function by relying only upon a departmental summary, provided they have regard to relevant considerations conditioning the exercise of the relevant power: McQueen at [19], [23], [30], [33]; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10 at [91] (Gordon J) and [295] (Jagot J).

22    In Po'oi v Minister for Immigration and Citizenship (2025) 314 FCR 376; [2025] FCAFC 192 at [56] (Kyrou and Needham JJ, Snaden J agreeing on this point at [1]–[5]), the Full Court summarised the extent to which the Minister may rely upon departmental summaries in exercising the power under s 501BA(2) of the Migration Act as follows:

56. In McQueen at [19], the plurality (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ) stated that a Minister may rely on their department to sift and organise material received and to prepare summaries of information, and that generally there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally. However, relying on the work of their department does not immunise a Minister from errors made by the department, as those errors can be attributed to the Minister (McQueen at [20] and [22]). At [22], their Honours referred to the following qualifications to the general principle that a Minister may rely on departmental summaries of material that were expressed in Carrascalao at [61] (Griffiths, White and Bromwich JJ): first, reliance upon a materially deficient summary may give rise to an inference that the decision-making process was improper; secondly, the use of a summary may not be appropriate when it seeks to capture a substantive argument if the force of the submission is thereby lost; and thirdly, account must be taken by a Minister of any statement in a summary which advises the Minister to consider a particular document or documents.

The Minister’s Decision

23    The documents provided to the Minister by the Department ran to over 900 pages and included the Tribunal’s reasons for decision, sentencing remarks of Judges of the County Court of Victoria made on three separate occasions between 2008 and 2023 and a transcript of a hearing in the County Court in 2003. The materials also included statements and submissions on behalf of the applicant, psychological reports, character references and statutory declarations of the applicant’s family members and others with whom the applicant had developed ties in the Australian community.

24    The covering Submission by the Department identified that the matter was referred to the Minister for possible consideration of whether to set aside the Tribunal’s decision, which in effect reinstated the applicant’s visa, and to cancel that visa under s 501BA. The Minister was provided with a Decision Page to record their decision, an index of relevant material, the relevant material and a draft Statement of Reasons. The Minister was asked, if they agreed with the reasoning set out in the draft Statement of Reasons, to sign that statement, with any amendments they considered necessary.

25    By the Submission, the Minister was advised that the discretion to cancel the applicant’s visa under s 501BA would be enlivened if the Minister was satisfied that the applicant did not pass the character test, on the basis of s 501(6)(a), on the basis of s 501(7)(a), (b) or (c), or s 501(6)(e) of the Migration Act, and if they were satisfied that cancellation was in the national interest under s 501BA(2)(b). Ultimately, the Minister decided to set aside the Tribunal’s decision and to cancel the applicant’s visa, and signed the draft Statement of Reasons, indicating their reasons for doing so.

26    The Reasons, at [6]–[8], record that the Minister recognised that s 501BA of the Migration Act empowers the Minister (or delegate) to personally set aside a decision of the Tribunal that, in effect, reinstated a person's visa and to cancel the visa if satisfied that the person does not pass the character test and that it is, at the time of the decision, in the national interest to cancel the visa. The Minister expressly recognised that he had a discretion not to cancel the visa, even if he was satisfied of the matters regarding the character test and the national interest. The Minister was also aware that s 501BA was not subject to the rules of natural justice but it was open to him to afford the applicant with an opportunity to be heard in respect of the possible exercise of power under s 501BA, which he had elected to do.

27    The Reasons, at [9]–[11], record that the Minister was satisfied that the applicant did not pass the character test and that the condition under s 501BA(2)(a) was met. As that issue was not in contention, it is unnecessary to say anything further about that aspect of the Minister’s decision.

National Interest

28    The Reasons, at [12]–[15], record that the Minister considered that matters of national interest included, among other things, the protection of the community and the expectations of the Australian community. The Minister considered matters relevant to the "National Interest", under two main subheadings, being first "Protection of the community", and second, "Expectations of the Australian community".

29    In regard to “Protection of the community”, the Minister noted that in determining whether it was in the national interest to cancel the applicant’s visa, the Minister had given the highest priority to the safety of the Australian community and the need to protect the Australian community. Further, in doing so, the Minister considered the seriousness of the applicant’s criminal conduct, having regard to the circumstances and nature of the conduct, the likelihood of reoffending, and the risk posed to the Australian community if such a likelihood eventuated.

30    In regard to the seriousness of the applicant’s criminal conduct, the Reasons record, at [18]–[35], that the applicant had a “significant and extensive criminal record” involving “violent offences”, including “kidnapping” and “reckless conduct endanger[ing] life” involving the use of firearms (ie, a sawn-off shotgun and a .32 automatic pistol). Further offences included seven counts, on different occasions, of possessing a firearm without exemption/approval and trafficking a commercial quantity of pseudoephedrine (more than four times the commercial quantity), which the Minister regarded as “very serious”.

31    The Minister stated, at [33] of the Reasons, that:

The cumulative effect of [the applicant’s] offending is that substantial law enforcement action and court resources have been spent in dealing with his offending and there has been an adverse effect on the community as a result of his offending.

32    The Minister noted, at [35] of the Reasons, that despite having received warnings from the Department, the applicant had not taken the warnings seriously and the applicant was “aware after the second warning that further offending could have serious consequences for his migration status”.

33    In regard to the “Risk to the Australian community”, the Reasons record, at [36], that having regard to the applicant’s offending history, the Minister considered that any future offending of a similar nature or seriousness would have the potential to cause serious physical and psychological injury to members of the Australian community due to the harmful impact on society of illicit drug use and the potential risk for violence including from illegal firearms. In assessing the likelihood of the applicant reoffending in the future, the Minister considered 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, including more recent conduct in custody.

34    In regard to factors contributing to past conduct, the Minister stated that he had taken into account that the applicant’s criminal history was underpinned by his drug addiction and that he had suffered trauma in his life, including during his childhood. The Minister accepted that the applicant had managed to abstain from drugs since 2019.

35    In regard to remorse and rehabilitation, the Minister noted that the applicant had expressed remorse for his offending and had undertaken rehabilitation courses. The Minister noted the psychological report of Dr Davis dated 20 May 2024, submitted by the applicant, and accepted Dr Davis’ assessment that “[the applicant] is of ‘moderate risk’ of reoffending”.

36    By way of conclusion on risk to the community, the Minister concluded as follows:

51. 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.

52. I have found that the nature of [the applicant’s] conduct including violence is very serious. I have further found that possessing a prohibited firearm has the potential to cause serious physical and or psychological injury to members of the Australian community, if repeated.

53. A number of factors, as outlined above, may have contributed to [the applicant’s] offending behaviour. I note that [the applicant] has been abstinent from illicit drug use since 2019 and has remained drug free, and that he is now motivated to remain drug free and not reoffend. I also note that [the applicant] was offence-free when he was on bail in the community from 2019 to 2023. However, I also place weight on the expert report of Dr Davis, as did the AAT and have relied upon because it is the most recent, which assessed [the applicant] as having a moderate risk of reoffending, though this was on a downward trajectory. Accordingly, I have found that on balance that there is a moderate risk that [the applicant] will re-offend.

54. Considering the nature and seriousness of [the applicant’s] conduct, the potential harm to the Australian community should he commit further offences or engage in other serious conduct, and taking into account the likelihood of [the applicant] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs strongly in support of cancellation in this case in the national interest.

37    In regard to “Expectations of the Australian community”, the Reasons record that the Minister observed that the Australian community, as a norm, expects the Government to not allow non-citizens who have engaged in serious conduct in breach of Australian laws to remain in Australia. The Minister noted the Tribunal’s finding that the applicant has acted “contrary to deemed community expectations”, with which the Minister agreed. This consideration was afforded significant weight toward a finding that it was, at that time, in the national interest to cancel the applicant’s visa.

38    Finally, in relation to the national interest, the Minister concluded, at [60]–[62] of the Reasons, as follows:

60. In deciding whether I am satisfied that it is in the national interest to cancel [the applicant’s] Class BF Transitional (Permanent) visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

61. In the specific case of [the applicant], I have considered his extensive criminal history which includes firearms, kidnapping, assault and drug offences. I have considered the nature and seriousness of his conduct and have concluded that it is very serious. I have also considered the likelihood of [the applicant] reoffending and have found that there is a moderate risk of reoffending. I have also considered the expectations of the Australian community.

62. Having regard to all of the above, I conclude that the use of my discretionary power to cancel [the applicant’s] Class BF Transitional (Permanent) visa is in the national interest.

Discretion

39    Recognising that the power to cancel a visa under s 501BA is discretionary, the Reasons record, at [63], that the Minister considered that there were relevant considerations that might support a decision not to set aside the Tribunal’s decision and cancel the applicant’s visa, even though they were satisfied that: (1) the applicant did not pass the character test; and (2) it was in the national interest to cancel the visa. The Minister then proceeded to take into consideration the following four considerations.

40    The first consideration was the best interests of minor children. In relation to the best interests of the applicant’s daughter, the Minister stated that they had given this consideration “significant weight against cancellation”. In relation to the best interests of other minor children, including the applicant’s nieces, the Minister stated that they had given their best interests “limited weight against cancellation” on the basis the children would not be deprived of a person who is essential or otherwise of critical importance to their development.

41    The second consideration was the applicant’s ties to Australia. The Minister noted that the applicant had resided in Australia for over 50 years, having arrived as a 17-month-old infant. The Minister considered the impact on immediate family in Australia who would remain in Australia if the applicant were to be removed from Australia. The Minister considered the applicant’s links through family and social ties to Australia and concluded that the strength, nature and duration of the applicant’s ties to Australia weighed “very strongly against visa cancellation in this case”.

42    The third consideration was the legal consequences of the decision. The Minister noted the applicant’s submission that, once the applicant is removed from Australia, he would be barred from returning to Australia unless the Minister intervened to grant him a visa.

43    The fourth consideration was the “impediments” that the applicant would face if he were removed from Australia to Malta. The Reasons, at [91]–[92], record that the Minister noted the applicant’s age at that time, of 52 years, and diagnosis as having mild symptoms of Post-Traumatic Stress Disorder, substance-induced anxiety disorder and mixed personality disorder.

44    The Reasons record, at [95], that the Minister found that the applicant is likely to face moderate language and cultural barriers if required to resettle in Malta, because he has only limited Maltese language skills, has no relationship with his extended family in Malta and he has spent only a short period of time in Malta as a teenager.

45    In relation to “Social, medical and/or economic support available in Malta”, the Reasons record, at [97], that the Minister noted the applicant’s statement that he feared how he would have shelter or be able to financially support himself in Malta, and had stated that he would not be able to easily establish himself in Malta, given that he would have no family or other supports in Malta.

46    The Minister noted, at [98] of the Reasons, the applicant’s statement that he would not be able to access appropriate medical treatment and support for his conditions, and that separation from his family and supports in Australia would cause his health to decline. Further, the Minister noted that the applicant stated that he would find it difficult to secure employment in Malta given his criminal history.

47    The Minister concluded, at [101]–[102]:

101. I find that [the applicant] will experience practical, financial and emotional hardship if removed to Malta, because of his age, the length of time he has spent living in Australia, the lack of family and social support, language and cultural barriers and due to his medical conditions. I note that he will have access to health and welfare services in Malta on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia. I also acknowledge that [the applicant] would need to establish a new network of contacts for medical and social support, given that his family will not be relocating to Malta with him.

102. Overall, I find these factors weigh strongly against cancellation of the visa.

48    The final consideration was that the applicant was a victim of childhood sexual abuse and the applicant feared confrontation that might occur if he came into contact with the perpetrator, who was living in Malta, and the consequential impact on his mental health. The Reasons record, at [105], that the Minister had given this consideration “some weight” towards not cancelling the applicant’s visa.

49    In conclusion, the Minister stated that they were satisfied that the applicant does not pass the character test and that it was in the national interest to cancel the applicant’s visa. The Minister found that there were a number of other factors that weighed against a decision to cancel the applicant’s visa, including the strength and nature of the applicant’s ties to Australia and impediments if he were removed to Malta.

50    However, the Minister stated that they had given “very significant weight to matters in favour of cancellation”, including the serious crimes committed by the applicant, the great harm and cost to the Australian community caused, and that non-citizens such as the applicant should not generally expect to be permitted to remain in Australia. The Minister could not rule out the possibility of further criminal conduct by the applicant and found the Australian community should not tolerate any risk of further harm.

51    The Minister found that the considerations against cancellation were outweighed by the national interest considerations in this case, and they exercised their discretion to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA of the Migration Act.

Ground One – Alleged failure to undertake active intellectual engagement with the materials

52    The applicant submitted that the Minister did not spend sufficient time with the materials provided to them to have given proper, genuine and realistic consideration to those materials. That was because the materials provided to the Minister were over 900 pages, whereas the Minister recorded they had spent 1 hour and 58 minutes as the “[t]otal time taken in considering submission and attachments”.

53    The applicant emphasised that the Minister stated on the Decision Page attached to the Submission “[t]he following is my decision … having read and considered all of the material” (emphasis added) and that the Submission itself advised that it was open to exercise the power under s 501BA “[a]fter considering this submission and all of the attachments” (emphasis added). The applicant submitted that, both on the Decision Page and in the “Minister’s Comments” box in the Submission, the Minister recorded they had spent 1 hour and 58 minutes as the “[t]otal time taken in considering submission and attachments”.

54    The applicant submitted it was open to the Minister to correct this indication if they did not consider it necessary to read and consider all of the materials. Furthermore, in the absence of evidence about whether the Minister was relying on the Department summary or read only salient documents rather than all the documents, having regard to the respondent’s capacity to adduce such evidence and applying the principles of Blatch v Archer (1774) 1 Cowp 63; 98 ER 969, the Court should infer that the Minister did believe they read, and believed it was necessary to read, all of the attachments.

55    While the applicant submitted initially that there was no summary of the materials prepared by the Department, leading counsel for the applicant accepted that the draft Statement of Reasons was effectively a summary of the materials to assist the Minister. It is open to the Minister to rely upon summaries prepared by the Department and, in this case, the Reasons were capable of providing the Minister with a de facto summary of the case: EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [239] (Perry J). It was not suggested that the Minister was unable, in the recorded one hour and 58 minutes, to consider the Submission and Reasons.

56    The Minister indicated in the Reasons, at [3], that “[i]n making my decision, I have had regard to the documents provided by the Department” (emphasis added). This tempers the effect of the statements relied on by the applicant. It indicates that the Minister had not read and considered each individual attachment: XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210 at [104] (Horan J). Having regard to the decision record as a whole, I infer that the Minister read at least the Submission and the draft Statement of Reasons, which was detailed and provided references to the specific attachments relied on, but did not consider it necessary to attempt to read the attached material in its entirety: see, eg., Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [53]–[54]; XPLW at [104]; BQQ25 v Minister for Immigration and Citizenship [2025] FCA 1279 at [59]–[62] (Hill J). This level of engagement was sufficient for the Minister to understand and assess the merits of the applicant’s case in deciding to exercise the power under s 501BA: see, eg., Po'oi at [72]–[74], [110] (Kyrou and Needham JJ, Snaden J relevantly agreeing at [1]–[5]); BQQ25 at [60] (Hill J).

57    For those reasons, the applicant failed to establish the first ground of review.

Ground Two – Alleged finding that was illogical or irrational in that no evidence supported the finding

58    The applicant submitted the Minister made an illogical or irrational finding that, if removed to Malta, the applicant will have access to welfare services on the same basis as other nationals of Malta, for which there was no evidence. In so doing, the applicant elided what are typically understood as two distinct grounds of judicial review, one being irrationality as to fact finding and the other being an absence of evidence.

59    The applicant focused on the following statement of the Minister at [101] of the Reasons:

I note that [the applicant] will have access to health and welfare services in Malta on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia.

60    The applicant submitted that the threshold issue he needed to establish was whether, as a matter of construction, this statement was a finding, and that the form of that finding was that the applicant will have access to welfare services in Malta on the same basis as other nationals. (As mentioned earlier, the applicant no longer pressed Ground Two with respect to access to healthcare services.) In particular, the applicant submitted that “will have access to” is to be interpreted as having practical, real access to welfare services, as distinct from a legal entitlement to those services.

61    The applicant submitted there was not a skerrick of evidence before the Minister to support this finding. The applicant juxtaposed the finding made by the Tribunal – that “[a]s a citizen of Malta, it is likely that the Applicant would be entitled to social security support, but no evidence was submitted as to eligibility or entitlement” – against the alleged finding made by the Minister – that “[the applicant] will have access to health … services in Malta on the same basis as other nationals” – to submit the Minister’s finding went too far. The applicant submitted that there was no evidence before the Minister to perform the requisite bridging between the Tribunal’s finding on the one hand and the Minister’s on the other.

62    The applicant further submitted the alleged finding was a critical finding. This was because the finding was about the applicant specifically, and the Minister reached their decision having been assisted by their conclusion that the impact of removal of the applicant will be softened by access to the Maltese welfare system. Had the alleged finding been subtracted from the Minister’s reasons, it was submitted, it is possible that the balancing exercise might realistically have fallen in the applicant’s favour. In this regard, and more specifically, the applicant submitted the Minister’s finding that the impediments the applicant would face if removed to Malta weighed “strongly” against cancellation may have been amplified to “very strongly” against cancellation of the visa.

63    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41, the High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) discussed the principles governing jurisdictional error that arises from a finding made in the absence of evidence supporting that finding. Viane concerned an exercise of discretion under s 501CA of the Migration Act but those principles have been found to be equally applicable to, as is relevant here, an exercise of discretion under s 501BA(2): Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517 at [100] (Stellios J).

64    In Viane, the Minister was not satisfied that there was another reason to revoke the original cancellation decision. In reaching that decision, the Minister made findings about conditions in countries to which the respondent might be removed if the cancellation of his visa was not revoked, which related to the languages spoken and the availability of and access to welfare, healthcare and educational services. The High Court observed that any findings of fact made by the Minister in that context must either be based on some evidence or other supporting material, or must be made in accordance with the Minister’s personal or specialised knowledge (including the adoption of the accumulated knowledge of the Department) or by reference to what is commonly known: Viane at [17]–[19]. There was no “objective evidentiary material” before the Minister capable of supporting the findings: Viane at [7]. The High Court observed the “obvious inference” was that the impugned findings were based on the personal or specialised knowledge of the Minister or his department: Viane at [18], [26]–[28]. In this regard, the Minister is not expressly required to disclose in their reasons for decision whether a material finding was made from personal or specialised knowledge: Viane at [18].

65    The applicant sought to distinguish Viane in two relevant ways. First, the relevant finding in Viane was “English, however, is widely spoken in American Samoa, and Samoa, and health care, education, and some welfare supports are available in either location”: Viane at [3]. This, the applicant submitted, was a general finding about American Samoa and Samoa rather than a finding specific to the family of the applicant in Viane. By contrast, the finding here, according to the applicant, was in relation to the applicant specifically and his capacities to access welfare. Second, the applicant submitted that, unlike in Viane, the impugned finding here was a critical finding, for the reasons summarised above.

66    The Full Court in XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349; [2024] FCAFC 131 (Markovic, Cheeseman and Horan JJ) observed, in relation to s 501CA, that it may not be open to infer that a “particular or personal” finding was derived from pre-existing personal or special knowledge, or common knowledge. Of relevance to the Full Court in XRZG was a finding by the Tribunal that “[w]hile that may be the case, the Tribunal does not consider that drugs are as readily available in detention as they are in the community”. The Court rejected the argument that the impugned finding was a “particular or personal” finding about the appellant in that case, stating at [54]:

However the impugned statement is interpreted, it is clearly directed to matters of a general nature in relation to the circumstances of detention in a jail or immigration detention centre, as compared with the circumstances in the general community. It is not a “particular or personal” finding about the appellant and his individual circumstances of a kind that could not be the subject of any pre-existing personal or specialised knowledge or common knowledge possessed by the Tribunal, which may therefore need to be supported by some evidence or other material: see Viane at [21]. It was on this basis that the High Court in Viane distinguished decisions such as Splendido and Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628. Rather, the impugned statement was an expression of the Tribunal’s view in relation to general matters beyond the facts of the particular case, which was used by the Tribunal to assess the representations that had been made by the appellant about his rehabilitation from a drug dependence disorder.

67    The Court continued at [56]:

In any event, to the extent that the Tribunal made any “finding” about the relative availability of drugs in detention and in the community, it was not a finding for which any specific evidence or other material was required. Rather, an inference can be drawn that the impugned statement was based on matters “commonly known” about the conditions in jail and immigration detention compared with those in the community or, alternatively, on the Tribunal’s personal or specialised knowledge about such conditions.

68    In relation to the principles governing judicial review of critical findings, the Full Court in XRZG conveniently summarised those principles, at [62]–[65], which I gratefully adopt and repeat insofar as they are relevant to this decision (citations omitted):

62.     … where the existence of a particular objective fact is a precondition to the exercise of jurisdiction by an administrative decision-maker, a court on judicial review may determine whether or not that fact exists on the evidence before the court, leaving less scope for a challenge based on the absence or insufficiency of evidence before the decision-maker. There may, however, be cases in which the relevant power is conditioned on the subjective state of mind of the decision-maker, such as his or her satisfaction as to the existence of certain facts or matters, or in which the decision-maker makes findings of fact on matters that are committed to that decision-maker in the course of exercising a power. Different views have been expressed as to the circumstances in which a finding of fact made in the course of reaching a requisite state of satisfaction or exercising a power can be challenged as lacking any probative basis...

63.     For present purposes, it is sufficient to note that a finding of fact made without a “skerrick” of evidence will amount to an error of law. Whether such an error of law amounts to jurisdictional error will depend on the nature and significance of the finding of fact. On any view, in order to amount to jurisdictional error, the relevant finding must have been at least a “critical step” on which the ultimate decision was based, if not a precondition to the exercise of jurisdiction.

64.    In this regard, it is worth noting that the ground of appeal on which the appellant relies alleges jurisdictional error on the basis of legal unreasonableness, namely, that the Tribunal erred by making a finding that was legally unreasonable because it was without a probative basis. An absence of evidence or a lack of logical grounds for a particular finding or inference of fact might be such that “it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically and rationally on the available material”. However, any such irrationality in the course of making a particular finding of fact would only amount to jurisdictional error if the fact was “critical” to the ultimate decision.

65.     […] In particular, if a finding of fact for which there was no probative basis was critical to the Tribunal’s ultimate decision, the threshold of materiality is likely to be easily met.

69    In the present case, the impugned statement was part of paragraph 101 of the Reasons, set out above in paragraph 47, which it is convenient to repeat:

101. I find that [the applicant] will experience practical, financial and emotional hardship if removed to Malta, because of his age, the length of time he has spent living in Australia, the lack of family and social support, language and cultural barriers and due to his medical conditions. I note that he will have access to health and welfare services in Malta on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia. I also acknowledge that [the applicant] would need to establish a new network of contacts for medical and social support, given that his family will not be relocating to Malta with him.

70    In the sentence that precedes the impugned statement, the Minister found that the applicant “will experience practical, financial and emotional hardship if removed to Malta, because of his age ... and due to his medical conditions”. The Minister moderated that finding by the observation that the applicant “will have access to ... welfare services in Malta on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia”. There, the Minister made a general observation about welfare services in Malta and compared that to Australia. The impugned statement was not a finding that the applicant would be able to “get” welfare services, as suggested by the applicant, or a particular finding that was personal to the applicant. Read in proper context, the impugned statement was a finding that the applicant will be able to gain access to welfare services in Malta on the same basis as other nationals, which is confirmed by the reference later in the same sentence to “accessibility”, being the ability to gain access. It was not a particular or personal finding about the applicant or the applicant’s circumstances, and it was not a statement that the applicant would “get” welfare services in Malta. It can be inferred that the impugned statement, being a statement of a general nature, was based on the personal or specialised knowledge of the Minister or his Department regarding welfare services in Malta, which it was open to the Minister to rely upon: Viane at [17]–[18], [26]–[28]; Minister for Immigration v Mukiza (2022) 291 FCR 568; [2022] FCAFC 89 at [39]–[41] (Markovic, Thawley and Cheeseman JJ). For those reasons, the applicant’s submission that the finding was made without a skerrick of evidence is rejected.

71    For those reasons, the applicant failed to establish the second ground of review.

Conclusion

72    The application filed on 22 August 2025 should be dismissed, with costs.

Associate:

Dated:    26 August 2026