Federal Court of Australia

Kim v Minister for Immigration and Citizenship [2026] FCA 1243

ORDERS

THE COURT ORDERS THAT:

1. The amended originating application be dismissed.

2. The Applicant pay the costs of the Respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

INTRODUCTION

1 The applicant seeks judicial review of the decision of the Assistant Minister for Citizenship, Customs and Multicultural Affairs made pursuant to s 501BA(2) of the Migration Act 1958 (Cth).  By that decision, the Assistant Minister set aside a decision of the Administrative Review Tribunal to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa and cancelled that visa.  The reasons for the Tribunal’s decision (TR) are published in Kim and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1254.

BACKGROUND

2 The applicant is a citizen of the Republic of Korea.  She first arrived in Australia as a visitor on 24 May 2001.  The last visa granted to her was the Class BB Subclass 155 Five Year Resident Return visa on 8 September 2016.

3 The applicant suffers from a gambling addiction.  In 2004, she was convicted on three counts of entering a casino as an excluded person.  In 2013, she was convicted on four counts of “stealing by clerks and servants” and given a suspended sentence of 18 months.  The applicant had admitted to removing a total of $18,031 from the safe at the supermarket where she had worked to fund her gambling habit.

4 After working in hospitality, in 2014, the applicant found work at a solicitor’s office.  From July 2020, the applicant took money from the firm to pay her gambling debts and feed her gambling habit.  Following a guilty plea, on 24 October 2023, the applicant was sentenced to 9 years’ imprisonment for “fraud – dishonestly gain benefit/advantage by employee value of at least $100,000”.  The applicant had obtained more than $3 million by effecting fraudulent transactions on her employer’s trust account.  Following an investigation, the Queensland Law Society froze her employer’s trust account and the principal of the firm was forced to close his business.  Clients whose funds had been defrauded were reimbursed by the Fidelity Fund and the applicant’s employer’s insurance.

5 On 3 September 2024, the applicant’s visa was mandatorily cancelled by a delegate of the Minister for Immigration and Citizenship under s 501(3A) of the Act.

6 On 12 May 2025, following the applicant’s request for revocation of the cancellation decision, a delegate of the Minister decided not to revoke the original decision pursuant to s 501CA(4) of the Act.

7 On 5 August 2025, the Tribunal set aside the delegate’s decision not to revoke the original decision under s 501CA(4) of the Act and substituted it with a decision to revoke the original decision.  Although the applicant did not pass the character test, the Tribunal was satisfied that there was another reason to revoke the cancellation.

8 On 7 April 2026, the Assistant Minister set aside the Tribunal’s decision to revoke the original decision under s 501BA of the Act because he was satisfied that the applicant did not pass the character test and that the cancellation of the applicant’s visa was in the national interest.

STATUTORY CONTEXT

9 The Assistant Minister’s decision was made pursuant to s 501BA of the Act, which 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.

10 In relation to the “character test”, ss 501(6)(a) and 501(7)(c) of the Act relevantly provide:

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7));

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more;

11 Section 501E of the Act prohibits a person from applying for other visas if the Minister has made a decision pursuant to ss 501, 501A, 501B or 501BA to refuse to grant a visa or to cancel a visa that has been granted, except if it is for a protection visa:

501E Refusal or cancellation of visa—prohibition on applying for other visas

(1)    A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a)    at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b)    the decision was neither set aside nor revoked before the application time.

…

(2)    Subsection (1) does not prevent a person, at the application time, from making an application for:

(a)    a protection visa; or

(b)    a visa specified in the regulations for the purposes of this subsection.

Note:    The person may however be prevented from applying for a protection visa because of section 48A.

…

12 Section 189 of the Act provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non‑citizen, the officer must detain the person.

13 Section 198 of the Act requires an officer to remove as soon as reasonably practicable an unlawful non-citizen from Australia in a number of situations.  This includes if the unlawful non-citizen is a detainee, their substantive visa has been refused and the application has been finally determined or the visa cannot be granted, and the non-citizen has not made another valid application for a substantive visa that can be granted: s 198(6) of the Act.

THE ASSISTANT MINISTER’S DECISION

Character test

14 The Assistant Minister was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act, on the basis of s 501(7)(c) of the Act.

National Interest

15 The essential issue for the Assistant Minister was whether he was satisfied that the cancellation of the applicant’s visa was in the national interest.

16 In his reasons (R), the Assistant Minister recognised that “national interest” is not defined for the purposes of s 501BA of the Act, and that what is or is not in the national interest is an evaluative exercise entrusted by the legislature to the Minister to determine to his or her satisfaction.  The Assistant Minister considered that matters of national interest include, amongst other things, the protection of the Australian community and the expectations of the Australian community.  The Assistant Minister gave the highest priority to the safety of the Australian community and the need to protect the Australian community.

Protection of the Australian community

17 In considering the need to protect the Australian community, the Assistant Minister assessed the seriousness of the applicant’s criminal conduct having regard to the circumstances and nature of the conduct, the likelihood of her reoffending, and the risk she poses to the Australian community if such a likelihood eventuated.

18 In relation to the seriousness of the nature of the applicant’s criminal conduct, the Assistant Minister concluded:

[36]    I consider it is a matter of serious concern that [the applicant] has re-offended, since her previous convictions for similar offending and being aware of the legal consequences of her criminal offending. The cumulative effect of [the applicant’s] offending has imposed considerable costs and consequences on the victims and the broader community. I consider [the applicant’s] offending to be serious and weighs heavily in favour of cancellation of her visa in the national interest.

19 The Assistant Minister considered that any future offending of a similar nature or seriousness would have the potential to cause serious psychological injury and/or financial harm to members of the Australian community.

20 In assessing the likelihood of the applicant reoffending, the Assistant Minister considered the matters that may have contributed to the applicant’s past conduct, indications of the applicant’s remorse and the extent of her rehabilitation.

21 The Assistant Minister took into account the applicant’s gambling addiction and accepted that her gambling addiction and mental state at the time of the offending contributed to her offending, although those factors did not reduce or mitigate the seriousness of the offending.

22 The Assistant Minister acknowledged the applicant’s remorse and accepted that, with the assistance of counselling, she had developed insights into her offending, which may lessen the risk of reoffending.

23 The Assistant Minister also considered the applicant’s rehabilitation with reference to the Tribunal findings, sentencing remarks and reports from her psychiatrist and psychologist.  In particular, the Assistant Minister noted that:

Court dispositions (such as probation and good behaviour), self-exclusion and rehabilitative opportunities had not deterred the applicant from gambling and reoffending.  The Assistant Minister held “serious concerns” given the applicant’s second relapse which resulted in her most recent offending was after receiving convictions for her previous offences and having engaged with gambling support systems.

The applicant’s history indicated that she only needed to attend a gambling venue once for her to relapse into her gambling, which had led to her stealing.  The Assistant Minister was “concerned that although [the applicant] may now have additional protective factors in her favour, there is still a concern that she will continue to offend”.

The Assistant Minister accepted that the applicant had made progress in her rehabilitation, however he was concerned that her addiction may take hold again and she may again find a way to steal to satisfy her addiction.

24 The Assistant Minister concluded that:

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

Expectations of the Australian Community

25 The Assistant Minister was of the view that the broader Australian community’s general expectations were that where a non-citizen has engaged in serious conduct in breach of Australian laws while in Australia, or where there is an unacceptable risk that they may do so, the Government would not allow such a non-citizen to enter or remain in Australia.

26 The Assistant Minister attributed significant weight to this consideration, towards a finding that it is in the national interest to cancel the applicant’s visa.

National Interest conclusion

27 The Assistant Minister concluded that the use of his discretionary power to cancel the applicant’s visa was in the national interest.

Discretion

28 The Assistant Minister acknowledged that the power to cancel a visa under s 501BA of the Act is discretionary and considered if there were other relevant considerations that supported a decision not to set aside the decision of the Tribunal, even though he was satisfied that the applicant did not pass the character test and that it was in the national interest to cancel the visa.  The Assistant Minister took into consideration:

Best interests of minor children.  The Assistant Minister noted that on the information before him, there was no indication that cancellation of the applicant’s visa could impact the best interests of any minor child in Australia.

Ties to Australia.  The Assistant Minister found that the applicant’s immediate family in Australia would experience emotional and practical hardship if the applicant were unable to remain in Australia.  The Assistant Minister accepted that the applicant had developed social ties during her residence in Australia and that there would be some adverse impact from her visa cancellation.  The Assistant Minister found that on balance, the strength, nature and duration of the applicant’s ties to Australia weighed “moderately slightly” against visa cancellation in this case.

Legal consequences of the decision.  The Assistant Minister observed that the applicant had not made any claims which required assessment under Australia’s international non-refoulement obligations and there was no other available evidence to indicate that such an assessment was necessary in this case.  Nor was the applicant covered by a protection finding.

Impediments if removed to South Korea.  The Assistant Minister found that the applicant will experience practical, financial and emotional hardship if removed to South Korea because of her age, lack of family and social support and separation from her son and daughter-in-law, but she will, if needed, have access to health and welfare services in South Korea on the same basis as other nationals.  The Assistant Minister acknowledged the applicant would need to establish a new network of medical support contacts.  The Assistant Minister weighed this consideration slightly against the cancellation of the applicant’s visa.

Impact on Australian business interests.  The Assistant Minister did not accept that a cancellation of the applicant’s visa would significantly compromise the delivery of important services to Australia and weighed this matter neutrally in support of a decision to cancel the applicant’s visa.

Additional matters, including the possibility of grandchildren.  The Assistant Minister attached minimal weight to the applicant’s relationship with potential grandchildren.

29 The Assistant Minister gave the highest priority to the safety of the Australian community and the need to protect its safety.  The Assistant Minister expressed his conclusions in the following terms:

[138]    I have found that a number of factors weigh against a decision to cancel the visa. These include the strength and nature of ties to Australia which I give moderate weight, slight weight is given to the impediments she faces if she is removed to South Korea and the possibility of becoming a grandparent in the future is given minimal weight.

[139]    I have given very significant weight to matters weighing in favour of cancellation. In doing so, I considered the serious nature of the crimes committed. [The applicant] has committed the serious crimes of, stealing by clerks and servants and fraud-dishonestly gain benefit/advantage by employee value of at least $100,000. Non-citizens such as [the applicant] who have a criminal history of such offences should not generally expect to be permitted to remain in Australia.

[140]    I find that the Australian community could be exposed to harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further criminal conduct by [the applicant]. The Australian community should not tolerate any risk of further harm.

[141]    In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens. I am of the view that the Australian community generally would expect non-citizens who have a serious criminal history not to continue to hold a visa, especially where the non-citizen continues to pose a risk to the Australian community.

[142]    I find that the considerations against visa cancellation are outweighed by the serious national interest considerations in this case.

GROUNDS OF REVIEW

30 By her amended originating application dated 19 June 2026, the applicant advances four grounds of review:

(1) By Ground 1, the applicant alleges that the Assistant Minister failed to consider the legal consequences of his decision.  The only legal consequences referred to in his reasons concern non-refoulement obligations.  There is no reference to the operation of s 501E of the Act which prohibited the applicant from applying for another visa whilst in Australia, nor that the applicant would be liable to immigration detention and removal from Australia pursuant to ss 189 and 198 of the Act.

(2) By Ground 2, the applicant alleges that the Assistant Minister’s decision is unintelligible in that he gave “moderately slightly” weight to a material consideration.

(3) By Ground 3, the applicant alleges that the Assistant Minister purported to consider the Tribunal’s reasons but did so unreasonably, in wrongly asserting that the Tribunal was satisfied that the risk of the applicant engaging in further criminal conduct should be assessed as “at least moderate”.

(4) By Ground 4, the applicant alleges that the that the Assistant Minister’s decision was not made within a reasonable time of the Tribunal’s decision.

CONSIDERATION

Ground 1 (failure to consider the legal consequences of the decision)

31 The applicant submits that:

(1) The legal consequences of a decision are mandatory considerations: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9]–[10] (Allsop CJ and Katzmann J).

(2) Legal consequences have been described as the “direct and immediate” consequences: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84], [88] (Kenny, Flick and Griffiths JJ); AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; (2024) 304 FCR 586 at [33] (Murphy, Stewart and McEvoy JJ).  The consequences that must be taken into account include “practical” consequences: KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 at [99] (Wigney J); Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCA 29 at [107] (North J) and [129] (Kenny and Perry JJ).

(3) The direct and immediate legal consequences that are attached to the decision in this case included:

(a) The operation of s 501E, prohibiting the applicant from applying for another visa whilst in the migration zone, except for a protection visa; and

(b) The operation of ss 189 and 198, rendering the applicant liable to immigration detention and removal from Australia.

(4) None of these consequences were referred to in the passage of the Assistant Minister’s reasons in the section addressing legal consequences, which was limited to non-refoulement obligations: R [109].

32 In so far as the first proposition is concerned, the Assistant Minister wishes to record that he was leaving open the question of whether he was bound to take into account the legal consequences of a decision in making a decision under s 501BA of the Act.  For present purposes, it is sufficient to observe that Allsop CJ and Katzmann J in NBMZ at [9], in the context of s 501(1), held that the Minister must take into account the Act and its operation in making a decision, and that to make a decision without taking into account what Parliament has prescribed by way of legal consequences is to fail to take into account the legal framework of the decision.  In the circumstances of that case, it was accepted that Australia owed protection obligations to the person concerned and as the law was understood at the time, in the absence of the exercise by the Minister of some other statutory power to grant a visa (there being no indication that such exercise was in contemplation), the consequence was that the person would be indefinitely detained.

33 There is no prospect of indefinite detention in the present case.  Following NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137 at [55], it is now understood that indefinite detention is not a legal consequence of a decision to cancel a visa.  Furthermore, in the present case, there was no evidence before the Assistant Minister that would suggest that there exists a practical situation which would have such a legal consequence: cf Cotterill at [107] (North J).  There was no practical factor that would result in the applicant being unable to be removed to South Korea as a legal consequence of her not holding a visa.

34 The power exercised in the present case was the power under s 501BA. The following have been described as accepted propositions in relation to the power in s 501BA(2) (Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [43]–[44] (Derrington and Hespe JJ)):

(1) For the purposes of s 501BA(2)(b), it is well accepted that the concept of the “national interest” is broad and evaluative: Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [156]–[157] (Griffiths, White and Bromwich JJ).  And, whilst the decisional freedom is not unbounded, the question is largely a political one: see Carrascalao at [57]; Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40]; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; (2015) 255 CLR 231 at [18].

(2) The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest: Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ); Gubbay v Minister for Home Affairs [2020] FCA 1417 at [56] (Reeves J); Candemir v Minister for Home Affairs [2019] FCAFC 33; (2019) 268 FCR 1 at [20]–[21] (Collier, Robertson and Thawley JJ).  And it is therefore a matter for the Minister to determine: Carrascalao at [158].

35 Even accepting that there is to be implied into the exercise of power under s 501BA a requirement to consider the legal consequences of the decision, there is no single prescribed manner in which the Assistant Minister might take the legal consequences into account.  To the extent that the applicant submits that, unless each legal consequence was expressly addressed under the heading “legal consequences” in the Assistant Minister’s reasons, it should be inferred that the Assistant Minister did not consider those consequences, that contention is not accepted.  It is axiomatic that reasons must be read in their entirety: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 (Kirby J).  Furthermore, the manner in which the legal consequences of a decision is addressed may be affected by the nature of those consequences.  Thus, in a case where there was a prospect of indefinite detention, it may be that more detailed consideration is warranted than in a case where the evidence does not disclose a basis to expect that a consequence of the decision is likely to be prospect of prolonged detention.

36 Read as a whole, the Assistant Minister’s reasons disclose that:

(1) The Assistant Minister had concluded that that there was no issue of non-refoulement on the facts and that the applicant was not covered by a protection finding: R [109].

(2) The consequence of the decision was that all applications for any other visa would be taken to be finalised as a result of the decision (as provided for in s 501F): R [2].

(3) The Assistant Minister had concluded that the expectation of the Australian community was that the applicant would not remain in Australia: R [83], [86].

(4) The Assistant Minister considered the consequences to the applicant upon being returned to South Korea, including impact on her immediate family and other family and social ties (R [94]–[108]), impediments by reference to age and health (R [111]–[112]), language and/or cultural barriers (R [113]–[114]), social, medical and/or economic support available in South Korea (R [115]–[122]) and impact on Australian business interests (R [125]–[128]).

(5) The consequences for the applicant’s ties to Australia were considered on the basis that she would not remain in Australia: R [102], [106].

(6) The applicant’s future contact with any potential future grandchildren would be in the form of contact through modern technology, demonstrating an awareness that the applicant would not remain in Australia: R [134].

37 Decision makers may have had actual regard to the legal consequence even if that regard is not framed by reference to the precise legislative provisions: Fraser v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 336 at [42] (Colvin J).  In the present case, each of the consequences of ss 501E, 189 and 198 were considered by the Assistant Minister.

38 In so far as s 501E is concerned, there was nothing in the materials that suggested the applicant proposed to make an application for a visa whilst in the migration zone.  Even accepting that the bar raised by s 501E was a consequence of the cancellation of her visa and did not require the actual making of an application in order for the section to be engaged, the reasons disclose that the Assistant Minister took into account that the consequence of the cancellation of the applicant’s visa was that she would not remain in Australia.  Section 501E was part of the legal basis for the consequence that the Assistant Minister had in view, namely that the applicant would not remain in Australia.

39 In so far as ss 189 and 198 are concerned, it is apparent from the face of the reasons that the Assistant Minister was cognisant of the fact that the applicant would be removed to South Korea.  The applicant submits that a consideration of the consequences to the applicant being removed under a heading “Impediments if removed to South Korea” is not the same as considering and weighing the consequence of the certainty of removal.  The Court does not accept that the distinction is meaningful in the present case.  It seeks to draw upon two sentences from a judgment of Moshinsky J in Minister for Immigration and Citizenship v RXJT [2026] FCA 33 in which his Honour made an observation about para 9.2 of Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA in the following terms at [20] (original emphasis):

I note that paragraph 9.2 of Direction 110 is expressed in hypothetical terms that are not tied to the likelihood or otherwise of the non-citizen being removed to their home country. The paragraph provides that decision-makers “must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country …” (emphasis added). The use of the word “if” conveys that this consideration is concerned with a hypothetical scenario. Paragraph 9.2 does not expressly state that the Tribunal is to calibrate the weight to be given to this “other consideration” depending on the likelihood or otherwise of removal taking place.

40 The observations are a clear reflection of the requirements of para 9.2 of that Direction.  Direction 110 does not apply in the present case.  There is nothing in those observations which support a contention that in making a decision under s 501BA, there is some requirement to refer to and attach weight to the certainty of removal as though it were a standalone consideration.

41 By his consideration under the heading “Legal consequences of the decision”, it is evident that the Assistant Minister was aware that in the circumstances of this case, there was no likely prospect of indefinite or prolonged detention.  In the absence of any non-refoulement or protection issues raised, there is nothing to suggest that immigration detention could or would extend beyond resolution of the review (or possibly any related judicial review or appeals).

42 In the present case, reading the reasons as a whole, the Assistant Minister is to be taken to have considered that the legal consequences of a decision to cancel the applicant’s visa to have been subsumed in his evaluation of other considerations.  The Assistant Minister makes no reference to legal consequences as a separate consideration in the matters to which he attached weight (either for or against a decision to cancel the applicant’s visa) at R [138]–[142].  The Assistant Minister did attach moderate weight to the nature and strength of the applicant’s ties to Australia, slight weight to the impediments faced by the applicant if removed to South Korea and minimal weight to the possibility of the applicant becoming a grandparent in the future.

43 The applicant submits that the fact that a person may be detained, even momentarily, must weigh, even if only slightly, against the reversal of a Tribunal decision to revoke a cancellation of a visa.  That submission is not accepted.  Subject to legal unreasonableness, the weight to be accorded to any particular legal consequence is a matter for the Assistant Minister.  It is not inherently irrational, and therefore legally unreasonable, to consider that the legal consequence of exposure to the prospect of detention as neither weighing for or against a decision if there is no reasonable prospect of that detention being prolonged: see also Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411 at [42] (Banks-Smith J).  For completeness, it is noted that the Tribunal in its decision (overturned by the Assistant Minister) considered legal consequences of the decision in a single sentence at TR [90]: “This consideration is neutral”.

44 It is apparent from the reasons given by the Assistant Minister that he appreciated that the legal consequence of his decision would be that the applicant would not be permitted to remain in Australia and would be returned to South Korea.  Those consequences flowed from the Assistant Minister’s decision to set aside the Tribunal’s decision and to cancel the applicant’s visa, by application of ss 501E, 189 and 198.  In the circumstances and having regard to the content of the Assistant Minister’s reasons as a whole, express reference to ss 189, 198 and 501E was not necessary.

45 Ground 1 of the application does not succeed.

Ground 2 (unintelligible reasoning)

46 The applicant refers to R [108] to support the contention that the Assistant Minister’s decision is unintelligible in that he gave “moderately slightly” weight to a material consideration.

47 That contention is not accepted.  The reasons must be read fairly as a whole: Wu Shan Liang at 291.  In his conclusion at R [138], the Assistant Minister records that he attached “moderate weight” to the strength and nature of ties to Australia.  In these circumstances, the Court accepts the contention of the Assistant Minister that the reference to “slightly” in R [108] is to be characterised as a slip and does not evidence unintelligible reasoning.

48 Ground 2 of the application fails.

Ground 3 (unreasonableness in relation to Tribunal finding)

49 The applicant relies upon R [76] to support a contention that the Assistant Minister made a finding without an evidentiary basis, or that it was based on a misunderstanding of the evidence.  The Assistant Minister records:

[76]    The [Tribunal] was satisfied that the risk of [the applicant] engaging in further criminal conduct should be assessed as at least moderate.

50 That paragraph is more accurately described as a record of the Tribunal’s reasons rather than a finding of fact made by the Assistant Minister.  The Tribunal in its reasons recorded the following under the heading, “Likelihood of further criminal conduct”:

[64]    In the absence of specific steps to ameliorate the risks, I am satisfied that the risk of the applicant engaging in further criminal or serious conduct should be assessed as at least moderate.

51 The Tribunal considered the evidence of protective factors and recorded:

[70]     … I am satisfied that the family’s close supervision of the applicant and plans following release reduce the risk of relapse to low.

52 The Tribunal further recorded:

[72]    I am fortified in my conclusion that the risk of reoffending is low by the fact that the applicant will, if she is released into the community, be on parole for an extended period.

53 Read in isolation, the Assistant Minister’s reasons at R [76] mischaracterises the conclusions of the Tribunal.

54 However, when read as a whole, the Assistant Minister’s reasons disclose that he recognised the following:

(1) The Tribunal noted that protective factors need to be considered: R [52].

(2) The Tribunal was satisfied that the family’s close supervision of the applicant and plans following release into the community reduced the risk of relapse to low: R [54].

(3) The Tribunal noted that if the applicant was released into the community next year she can expect close supervision for the following six and half years whilst on parole: R [60].

55 Having set out the above, the Assistant Minister records that:

[62]    I note Court dispositions such as probation and good behaviour bonds, self-exclusion, and rehabilitative opportunities have not deterred [the applicant] from gambling and re-offending. [The applicant] has twice relapsed into gambling…

…

[68]    Overall, [the applicant’s] history would indicate that she only needed to attend a venue where gambling occurred for her to relapse into her gambling habits, which have inevitably led to her stealing from her employer to fund her gambling. I am concerned that although [the applicant] may now have additional protective factors in her favour, there is still a concern that she will continue to offend.

…

[74]    After [the applicant’s] offending in 2013, her son and daughter in law would have had an appreciation of the nature of [the applicant’s] problem, and even after her conviction in 2023, [the applicant’s] son was angry with her. I note with concern it was not until the [Tribunal] hearing that [the applicant’s] son forgave her. I find [the applicant’s] relationship with her son is important without finding it to be a significant protective factor in [the applicant’s] gambling.

56 Paragraph R [76] followed immediately thereafter in the Assistant Minister’s reasons.

57 It is evident from the above, that the Assistant Minister recognised and understood that the Tribunal had been satisfied that the risk of the applicant relapsing was low based on the Tribunal’s assessment of protective factors.  The Assistant Minister however did not accept that the protective factor of the involvement of the applicant’s family, which was the primary basis on which the Tribunal formed its satisfaction, would be a significant protective factor.  In this context, R [76] should be read as a record of the conclusion the Tribunal reached absent protective factors.

58 Whilst poorly drafted, the Court is not satisfied that read in context, R [76] discloses a misconstruction of the Tribunal’s reasons.

59 Had it been necessary, the Court would have been satisfied that any mischaracterisation in R [76] was not material to the Assistant Minister’s conclusion on risk to the community.  The Assistant Minister formed his view about risk independently of the conclusions and state of satisfaction formed by the Tribunal.  He did not adopt the Tribunal’s reasoning (giving reasons for his views) and made his own risk assessment, summarised at R [80] in the following terms:

[80]    A number of factors have contributed to [the applicant’s] offending behaviour. I note [the applicant] has relapsed on two occasions, with the second occasion involving over $3,000,000. I remain concerned that, as noted by [the applicant’s] psychologist, ‘her past behaviour may well be a guide to her future behaviour because the process is not rational and likely has a genetic link, she is prone to relapse’. I have found that on balance there remains an ongoing, albeit somewhat reduced, likelihood that [the applicant] will reoffend.

60 Although the Assistant Minister concurred with the Tribunal’s conclusion that protection of the Australian community weighs against the applicant, the Assistant Minister made his own assessment of the likelihood of reoffending.  In those circumstances, based on the record of the reasons, even if it can be said that it was a condition of the lawful exercise of the Assistant Minister’s power to correctly characterise the Tribunal’s reasons, any mischaracterisation in R [76] is not material in the sense that there is no realistic possibility that the outcome of the decision could have been different had that error not been made.

61 Ground 3 does not succeed.

Ground 4 (unreasonable delay)

62 The applicant accepts that this ground cannot succeed before this Court having regard to the decision of the Full Court in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19 (Bromwich, Thawley and Kennett JJ).

63 Based on the law as currently understood, this ground must be dismissed.

CONCLUSION

64 The application is to be dismissed with costs, to be taxed if not agreed.

Associate:

Dated:    28 August 2026