Federal Court of Australia

Rodrigo Gomes Da Silva v Minister for Immigration and Citizenship [2026] FCA 1277

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, directed to the respondent, quashing the decision made on 18 June 2024 in respect of the applicant.

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

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

REASONS FOR JUDGMENT

THAWLEY J:

Overview

1    The applicant seeks judicial review of the Minister’s exercise of the personal power in s 501BA(2) of the Migration Act 1958 (Cth) to set aside a decision of the Administrative Appeals Tribunal and cancel his Class BS Subclass 801 Partner visa. That visa had been granted on 2 November 2012, was mandatorily cancelled by a delegate of the Minister under s 501(3A) on 11 April 2017, and was reinstated on 25 January 2019 consequent upon the Tribunal’s decision to revoke the delegate’s decision to cancel the visa – see: Da Silva and Minister for Home Affairs (Migration) [2019] AATA 68.

2    The Minister exercised the power in s 501BA(2) on 18 June 2024. That was 5 years, 4 months and 25 days after the Tribunal’s decision. The applicant raises four grounds of review:

(1)    First, he contends that the Minister’s power under s 501BA(2) had expired before it was purportedly exercised, because an unreasonable length of time had passed since the Tribunal’s decision.

(2)    Secondly, the applicant contends that – if the Minister’s power had not been extinguished by effluxion of time – the Minister’s decision was unreasonable because the timing of the decision lacked intelligible justification and the delay associated with it was unreasonable.

(3)    Thirdly, he contends that, given the delay and the matters which the Minister considered important in making his decision, the Minister’s decision: (i) not to seek further information concerning the applicant; or (ii) to exercise the s 501BA(2) power without seeking such further information, was unreasonable.

(4)    Fourthly, he contends that in either or both: (i) forming the state of satisfaction required under s 501BA(2)(b); or (ii) exercising the discretion that arose if that state of satisfaction existed, the Minister’s reasoning was unreasonable.

3    The application for judicial review should be allowed for reasons covered by Ground 4.

Ground 1: the Minister’s power continued to exist at the time of the decision

4    The construction of s 501BA on which the first ground depends was addressed, and rejected, by the Full Court in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19; 315 FCR 207.

5    The power under s 501BA does not dissolve in relation to a particular person, unbeknownst to anyone, after some unspecified time. Whether the power was exercised legally, including by reference to any delay, is a different question.

6    The applicant maintains Ground 1 because the High Court has granted special leave to appeal the decision in XMBQ: [2026] HCADisp 164. The applicant submitted that the Court should determine whether there had been unreasonable delay assuming the power does cease to exist in relation to a particular person after a reasonable time has elapsed since the relevant tribunal’s decision: AS [6].

7    It is undesirable to make a finding about delay for the purposes of Ground 1. If XMBQ is wrongly decided, it is likely that the High Court will identify the precise terms of the statutory implication that has the result that the power extinguishes after a lapse of time and provide guidance as to what surrounding considerations are relevant to a conclusion that a lapse of time is such as to cause the power to extinguish in relation to a particular person. It is undesirable to express a conclusion on what is presently a hypothetical and uncertain issue.

Ground 2: the timing of the Minister’s decision had an intelligible justification

8    Ground 2 proceeded on the basis that jurisdictional error may be established where there is no plausible justification for the timing of a decision that is otherwise within power or where there was perverse or unjustifiable delay. The applicant relied on Kennett J’s observations in Hood v Assistant Minister for Immigration [2025] FCA 1336 at [42] and [43]. At [42], his Honour stated that legal unreasonableness might conceivably be found on the basis that there is no plausible justification for the “timing of a decision” that is otherwise within power. At [43], his Honour stated that delay, of itself, would not establish jurisdictional error: the delay would need to be capricious, perverse or otherwise incapable of justification. His Honour concluded that the delay in that case (four years and nine months) had an “evident and intelligible justification”, namely “that, because of finite resources and competing priorities, only limited resources could be devoted within the Department to assessing cases for the purpose of determining whether they should be raised with the Minister for the purpose of s 501BA”: at [44].

9    The applicant embraced what Kennett J said in Hood at [42] and [43], relying on issues of both timing and delay. The applicant sought to distinguish the result in Hood, submitting that the timing of the Minister’s decision in his case lacked plausible justification and involved a delay that was capricious or perverse.

10    At a factual level, the applicant’s case focussed on the time at which two newspaper articles were published (4 April 2019 and 25 May 2024) and the time at which the Minister made his decision (18 June 2024). The applicant also observed that ministerial thresholds used within the Department of Home Affairs to determine which cases should be referred to the Minister included a criterion that significant media interest provided a reason for referral.

11    The two newspaper articles were:

(a)    a Herald Sun article: on 4 April 2019, the Herald Sun published an article which identified the applicant as having had his visa cancellation decision overturned by the Tribunal; and

(b)    an Australian article: on 25 May 2024, The Australian published an article which involved criticism of the Minister in relation to Direction 99, made in January 2023.

12    The Australian article identified more than 25 cases in which the Tribunal had revoked cancellation decisions and which the author considered to be a “byproduct” of Direction 99. Direction 99 was made by the relevant Minister in January 2023. The Australian article was not directly concerned with the applicant’s case.

13    Knowing about the impending Australian article, on 24 May 2024, the Minister’s office requested a summary of all persons identified in the Herald Sun article from 2019. A summary was prepared in respect of the applicant. A Departmental email on 27 May 2024 linked the summary prepared in respect of the applicant to “the reporting over the weekend”, namely the Australian article. The Department obtained a National Criminal History Check (NCHC) on 29 May 2024. This indicated that the applicant had been convicted of criminal offences on four occasions since the Tribunal’s decision, including for assault occasioning actual bodily harm. A Ministerial submission was prepared, advising of the Minister’s options concerning whether to afford natural justice and whether to cancel the applicant’s visa under s 501BA(2).

14    The Minister exercised the power in s 501BA(2) on 18 June 2024. As part of the process of exercising the power, the Minister chose not to afford natural justice to the applicant, a course expressly authorised by s 501BA(3).

15    The applicant submitted that:

(a)    the temporal cause of the Minister’s decision – the reason why the decision was made when it was – was the publication of the Australian article; but that

(b)    the substantive cause of the Minister’s decision – why the decision was made at all – was the mention of the applicant by name in the Herald Sun article.

16    The applicant submitted that the (then) Minister knew about the Herald Sun article at around the time it was published in 2019 and did nothing despite that knowledge. The applicant observed that, over five years later, the (then different) Minister, influenced by the Australian article, took up the applicant’s case because he was mentioned in the Herald Sun article. In the applicant’s submission, dealing with his case at that point lacked plausible justification. The applicant accepted that it was not necessarily unreasonable for the Minister to make a s 501BA decision as a result of media coverage. Media coverage might affect what is in the national interest. But where the media coverage (the Australian article) has nothing to do with the individual in question and did not alter the national interest, a decision made because of media coverage is a decision the timing of which lacks plausible justification in the sense described in Hood at [42].

17    The applicant also submitted that the delay in making the decision was capricious, perverse or otherwise incapable of justification in the sense described in Hood at [43]. The applicant submitted that his case was unlike Hood in that the delay was not explained by a lack of allocation of resources.

18    It is convenient to proceed on the basis that jurisdictional error can conceivably be established in the ways indicated in Hood at [42] and [43], although I am not convinced Kennett J was intending to use the phrase “timing of a decision” to signify something other than the “delay” involved in making a decision. In either case, the applicant faces insurmountable difficulties.

19    First, it is not correct to say that the substantive cause of the Minister’s decision was the Herald Sun article. The applicant’s case had been identified by the Department for possible referral to the Minister, to consider exercising the power under s 501BA, four days after the Tribunal’s decision. The decision to exercise the power was later made by the Minister for the reasons given, including that he: (i) was satisfied that it was in the national interest to set aside the Tribunal’s decision and cancel the applicant’s visa; and (ii) did not consider there to be sufficient reason not to exercise the power as a matter of discretion. The timing of the Minister’s decision can be seen to have been affected by the Australian article, but it cannot relevantly be said that the decision was made because of the Herald Sun article.

20    Secondly, it is not correct to say that the delay in the applicant’s case was not explained by a lack of allocation of resources and that his case was in that respect different from Hood.

21    Whilst it is unnecessary to set it out in detail, the evidence rationally explains the time it took for the Minister to consider the applicant’s case and make his decision: Stubbs [33] to [46]. The applicant’s case was identified within the Department as one for possible referral to the Minister within four days of the Tribunal’s decision. His case remained so identified. Cases were triaged for priority within the Department. For example, cases involving persons in immigration detention were prioritised to minimise the number of persons in immigration detention: Stubbs [20]. The applicant was not taken into immigration detention and therefore did not attract the highest level of priority. Little of significance occurred until 24 May 2024, the day before the publication of the Australian article. The lack of activity until 24 May 2024 was caused by resourcing constraints, changes in ministerial policy, and institutional change, including changes in government: Stubbs [22] to [31].

22    In the language adopted by the applicant from Hood, there was an intelligible justification for the delay, being materially the same justification as was referred to in Hood at [44]. The delay in Hood was four years and nine months (13 March 2020 to 9 December 2024), covering much of the same time as the present case (25 January 2019 to 18 June 2024): Hood at [3] and [4].

23    Thirdly, whilst it may be accepted that the Australian article contributed to the timing of the Minister’s decision, its principal contribution was to accelerate that decision. If the time it took the Minister to exercise the power (or the delay) is rationally explained and has an intelligible justification, it is difficult to see how the timing of the Minister’s decision could become unreasonable or perverse by a cause that accelerated the Minister’s consideration of the applicant’s case.

24    Fourthly, the fact that the Australian article appears to have led the Minister to deal more expeditiously with cases which had been mentioned in a Herald Sun article some years earlier does not lead to a finding of unreasonableness or jurisdictional error. Contrary to the applicant’s submission, it is not significant that the Australian article focussed on Direction 99 and was not directly concerned with the applicant whereas the Herald Sun article directly concerned the applicant. Both articles concerned the same broad topic – the Tribunal overturning visa cancellation decisions made in respect of persons with criminal convictions. Given the common subject matter of the two articles, the impending publication of the Australian article provided an intelligible reason to revisit the cases identified in the earlier media coverage.

25    The answer is no different if the Minister in 2024 was aware of the Herald Sun article in 2019 or if the Minister in 2024 is to be attributed the knowledge of the Minister in 2019. To the extent it matters, it is likely that the Department and then Minister were aware of the Herald Sun article in 2019.

26    Assuming jurisdictional error can be established in the manner identified in Hood at [42] and [43], the applicant has not shown that: (a) the timing of the exercise of the power was perverse; or (b) the delay associated with making the decision lacked plausible justification or was otherwise unreasonable.

Ground 3: the failure to seek further information was not unreasonable

27    As mentioned, before making his decision, the Minister (through the Department) obtained limited further information about the applicant. He obtained the NCHC on 29 May 2024. He also obtained movement records. No other further information was obtained.

28    The applicant contended that it was unreasonable not to seek further information from the applicant concerning certain topics about which the Minister made findings in his decision. The applicant says the Minister’s failure to inquire was unreasonable. The applicant relied on Ozer v Minister for Home Affairs [2019] FCA 104, in which Steward J said that “the obligation to exercise the power in s 501BA in a legally reasonable way could, in an extreme case, require a decision-maker to make an inquiry” and that “there may … be cases where extreme delay in the exercise of [the power in s 501BA] will require a decision-maker to seek an update of the evidence before her or him if the power is to be exercised reasonably”: at [43(9)] and [45]. The applicant submitted that the Full Court approved those remarks in Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1 at [26].

29    The applicant submitted that his case involved “extreme delay” such that it was unreasonable for the Minister not to have sought further information from him in relation to matters the Minister regarded as particularly significant, including in relation to the risk of the applicant reoffending, his ties to Australia, and the best interests of affected minor children.

30    Within the bounds of reasonableness, it is for the Minister to decide what matters to take into account in forming a view about the national interest and in exercising the power in s 501BA(2): Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6; 315 FCR 159 at [38].

31    It is ordinarily implicit that procedural fairness must be afforded before exercising a statutory power affecting an individual, but that implicit obligation is expressly removed by s 501BA(3), which provides that “[t]he rules of natural justice do not apply to a decision under subsection (2)”. The Minister may reason without complete information: Luong at [47] and [100(c)].

32    Of course, the fact that the rules of natural justice do not apply does not mean that the Minister cannot choose to afford natural justice: Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 at [26]. Nor does it mean that the Minister may not obtain additional information.

33    The only “decision” to be made by the Minister under s 501BA(2) is whether to set aside the relevant decision and cancel a visa that has been granted to a person, if the Minister is satisfied about the matters in s 501BA(2)(a) (concerning the character test) and in s 501BA(2)(b) (that the cancellation is in the national interest): Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [32]; Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; 306 FCR 156 at [94]. In deciding whether to exercise the power in s 501BA(2), the Minister typically considers, and in this case did consider, whether to afford natural justice. That choice is an incident of the exercise of the power in s 501BA(2): Vargas at [35]; Palmer at [94]. Likewise, any obtaining of further information is incidental to the exercise of the power: Palmer at [94].

34    It is the formation of the states of satisfaction and exercise of power in s 501BA(2) which are implicitly conditioned by the requirement of reasonableness – see: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] (addressing s 501(3)). An applicant may establish legal unreasonableness by reference to conduct that is an incident of a decision made under s 501BA(2): Vargas at [35]; Palmer at [120] and [154]. The fact that the Minister chose not to afford natural justice, and that he did not obtain further information on certain topics, both form part of the circumstances in which the reasonableness of the exercise of the power in s 501BA(2) falls to be evaluated. The applicant’s case on unreasonableness ultimately rested on the lapse of time, the failure to inquire and the Minister’s reasoning. These strands were brought together by, and are better addressed under, Ground 4. The reasonableness of the Minister’s failure to inquire when exercising the power is inextricably linked with the exercise of power, including the other circumstances in which it was exercised (after over five years and without natural justice) and the reasons for the exercise of power.

35    The failure to inquire did not of itself result in jurisdictional error. The power could be exercised reasonably without inquiry. Whether it was is addressed next.

Ground 4: the Minister’s exercise of power was relevantly unreasonable

36    The power in s 501BA(2) is subject to the implied statutory condition that it be exercised reasonably. The Minister must form the state of satisfaction as to the national interest reasonably and exercise the discretion to set aside the Tribunal’s decision and cancel the relevant person’s visa reasonably: XMBQ at [27].

37    The test for unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ). The limitation which the implied condition imposes is “extremely confined”: SZVFW at [52] (Gageler J). What the single standard of reasonableness requires takes its content from (or must be assessed having regard to) the terms, scope and purpose of the particular statute – see: SZVFW at [135] (Edelman J). Section 501BA(2) confers a non-compellable power, the principal features of which include: personal exercise by the Minister; optional exclusion of natural justice; satisfaction of a national interest criterion; and absence of merits review. What is in the national interest is “largely a political question”: ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 at [11] and [92]. In its operation with respect to a Tribunal decision, s 501BA(2) provides for executive override of an outcome produced after merits review. These features of the statute are important in determining whether the minimum standard of reasonableness has been met, but they do not render the implied condition devoid of practical content.

38    As mentioned, the statute contemplates that the power in s 501BA(2) may be exercised on incomplete information. Where the Minister chooses not to afford natural justice, that fact is relevant to an evaluation of whether the power was reasonably exercised. The fact that natural justice has not been afforded may have consequences for how the power may reasonably be exercised or in the assessment of whether the reasoning was legally reasonable or rational – see, for example: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; 179 ALD 299 at [100]; GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [53]; Wachipa v Minister for Immigration and Citizenship [2026] FCA 806 at [71]; Luong at [48].

39    There are no fixed categories of circumstances which might give rise to legal unreasonableness. Whilst questions of rationality, and quality of outcome, are often relevant in assessing whether the implied condition has been breached, the answer is supplied by an evaluation of the decision (or the matters contended to give rise to the unreasonableness) against the terms, scope and purpose of the power, in light of all of the relevant factual and legal circumstances.

40    A decision which is legally unreasonable may lack a rational foundation, or an evident or intelligible justification, or be plainly unjust, arbitrary or capricious: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11]. Certain aspects of a decision, particularly those informed by essentially political considerations, may admit of a range of permissible choices not susceptible of evaluation solely by reference to objectively rational argument.

Summary of the applicant’s three challenges

41    The applicant’s challenge centred on three strands of the Minister’s reasoning:

(1)    the finding that the applicant’s rehabilitative efforts made after the Tribunal’s decision had little success, or that this was shown on the material before the Minister: Minister’s Reasons [57];

(2)    the assumption that the applicant’s only children in Australia were the four children identified in the evidence before the Minister; or, if the Minister did not make such an assumption, choosing to ignore or failing to take into account the interests of potential further children: Minister’s Reasons [69] to [70], [81] to [82]; and

(3)    giving weight to the likely impacts of the Minister’s decision on any current spouse or partner in circumstances where there was an insufficient body of material before the Minister to allow any reasonable assessment of those impacts or the weight to be given to them: Minister’s Reasons [81].

The first and third of the applicant’s complaints are not made out

42    As to rehabilitation, the Minister stated that, despite engaging in some forms of rehabilitation before the Tribunal’s decision, the applicant had continued, after the Tribunal’s decision, to engage in violent offending in the context of substance abuse issues. The Minister was particularly concerned that the Courts which imposed sentences on the applicant, after the Tribunal’s decision, had considered it necessary to order the applicant to abstain from drugs and alcohol and engage with rehabilitation services: Minister’s Reasons [57]. This suggested to the Minister that any rehabilitative efforts the applicant had made after the Tribunal’s decision had little success. The Minister considered, on balance, that there remained a real likelihood that the applicant would continue to reoffend: Minister’s Reasons [58]. The reasoning was as follows:

I am particularly concerned that the Courts have considered it necessary over the last two years to order [the applicant] to abstain from drugs and alcohol and engage with rehabilitation services, which tends to suggest that any rehabilitative efforts he made after the AAT decision to address his emotional dysregulation and abuse of intoxicating substances have had little success …

I have found that on balance there remains a real likelihood that [the applicant] will continue to reoffend.

43    The applicant contended that the Minister’s reasoning lacked any reasonable foundation.

44    The NCHC disclosed that the applicant was sentenced on 27 May 2022, 27 September 2022, 27 April 2023 and 16 January 2024. The dates of the offending giving rise to those sentences were not disclosed in the material before the Minister. The applicant did not challenge the Minister’s conclusion that the applicant committed violent offences after the Tribunal’s decision but noted that the material did not identify precisely when that offending occurred.

45    The applicant contended that the material could support a conclusion about rehabilitation up to the time of the post-Tribunal offending, but not about success or failure of rehabilitation as at the time of the Minister’s decision.

46    The Minister’s reasoning was not irrational or unreasonable. Contrary to the applicant’s submissions, the Minister did not positively conclude that the applicant’s rehabilitation efforts had little success as at the time of the Minister’s decision on 18 June 2024 (about five months after the sentences on 16 January 2024). Reading the reasons as a whole and fairly – including the phrase “tends to suggest” at [57] – the Minister approached the matter on the basis that the information available to him did not positively confirm a lack of success in rehabilitation as at the date of his decision. The Minister stated at [54]:

While I acknowledge that I do not have any current information as to [the applicant’s] progress with rehabilitative efforts, the risk has plainly materialised on a number of occasions since being given a second chance by the AAT.

47    The material before the Minister, including the NCHC, provided logical support for the Minister’s reasoning at [57] and [58] above. The Minister’s reasoning involved the permissible drawing of inferences from the available material, in circumstances where the Minister appreciated that the information before him was incomplete. The reasoning cannot properly be described as lacking any foundation or as irrational or capricious. The Minister’s conclusions were capable of being reached reasonably without seeking further information.

48    As to the impact of the decision on a possible spouse or partner of the applicant, the Minister recognised that the decision may have an emotional, practical and financial impact on a spouse or partner if there was one: Minister’s Reasons [81]. It was open to the Minister to reason in this way without seeking further information on the subject.

The second of the applicant’s complaints is made out

49    Difficulties emerge with the Minister’s approach to the second of the applicant’s complaints, namely the Minister’s consideration of the interests of the applicant’s children.

50    The Minister’s reasons included, at [69] to [70]:

In considering whether to cancel [the applicant’s] visa, I was mindful of Article 3 of the United Nations Convention on the Rights of the Child, to which Australia is a signatory, and treated the best interests of any affected minor children in Australia as a significant consideration.

The information available to me indicates that [the applicant] has declared that the following minor children could be affected by an adverse visa decision:

-    His two children from his marriage to Ms [X]:

i.    [A] (aged 17 or 18); and

ii.    [B] (aged 14 or 15); and

-    His two children from his relationship with Ms [Y]:

i.    [C] (aged 12 or 13); and

ii.    [D] (aged 11 or 12) …

51    The Minister then considered the possible effects of the decision on each of those four children (Minister’s Reasons [71] to [79]) and concluded, at [97], that:

… the best interests of [the applicant’s] minor children, as a primary consideration, weigh moderately against cancellation of [the applicant’s] visa.

52    As at the time of the Minister’s decision, the applicant had a fifth child from a third relationship (with Ms Z) born on 5 October 2023. Further, Ms Z was four months pregnant with their second child (the applicant’s sixth): Rodrigo Gomes Da Silva [14].

53    The applicant submitted that there were two possible explanations for the Minister not adverting to the possibility of additional children, both of which involve error. First, the Minister may have assumed that there were no additional children. This assumption would involve error because it was factually incorrect and had no logical foundation. Alternatively, the Minister considered, but unreasonably ignored, the possibility that the applicant had further children.

54    The respondent submitted that the Minister made no assumption one way or the other as to whether the applicant had additional children.

55    I do not accept that the Minister made no assumption either way if that is intended to mean that the Minister either: (i) did not proceed on the assumption that there were only four children; or (ii) proceeded on the basis that there may have been more children.

56    A fair reading of the Minister’s reasons indicates that he proceeded on the assumption that, so far as children were concerned, the position had not changed in the five and a half years since the Tribunal’s decision: the applicant had four children and no others.

57    The Minister did not turn his mind to the possibility of there being additional children. If he had turned his mind to that possibility, it would have been mentioned. When considering “ties to Australia”, the Minister adverted to the possibility that the applicant had a new relationship (at [81]) and then proceeded immediately (at [82]) to a matter he gave “particular weight”, namely the presence in Australia of the applicant’s four children, the interests of whom he had earlier considered in some detail: Minister’s Reasons [71] to [79], [81] and [82]. Having just referred to the possibility of a new relationship at [81], he did not refer to the possibility of further children at [82], or anywhere else.

58    The general acknowledgements in the Minister’s reasons that the applicant’s personal circumstances may have changed do not lead to the inference that the Minister considered the possibility of there being further children when the reasons are read as a whole and it is recalled that the Minister treated the interests of children as significant: Minister’s Reasons [10] and [12].

59    The Minister assumed that, so far as relevant children were concerned, there were only four children (to two mothers), without turning his mind to and addressing the possibility that there were more in circumstances where the Minister: regarded the interests of affected Australian children as significant; knew that over five years had elapsed since the Tribunal’s decision; knew he had not obtained further information (beyond the NCHC and movement records); knew he had chosen not to afford the applicant natural justice; knew that the applicant had existing children from former relationships and was 32 and in a new relationship at the time of the Tribunal hearing; and entertained the possibility that the applicant may have a new spouse or partner.

60    In my view, in those circumstances, it was a breach of the implied condition to exercise the power in s 501BA(2) reasonably: (a) to assume that there were only four children; and (b) not to consider the possibility that there were more children that might be affected by the decision. A decision-maker acting reasonably would not have assumed that there were only four children potentially affected and would have considered (and addressed) the possibility that there were more children. Given particularly the lapse of time, and knowledge that no relevant inquiry had been made, there was no basis for assuming that nothing had changed over the five and a half years since the Tribunal’s decision. The possibility was obvious that the applicant might have had or might be expecting further children. The rules of natural justice did not apply to the exercise of power in s 501BA(2), and there was no obligation to inquire, but it was not reasonable in the circumstances to assume that nothing had changed with respect to children and not address the possibility that circumstances had changed.

61    The Minister submitted that an important matter affecting the conclusion of unreasonableness in Wachipa was that the material before the Minister in that case revealed that Mr Wachipa had stated that he intended to start a family: Wachipa at [111]. That may be accepted, but it is only one point of factual distinction. Another point of distinction is that the delay in Wachipa was a little over a year, whereas here it was well over five years. Ultimately, these cases turn on a careful evaluation of all of the relevant facts and circumstances.

62    The error was jurisdictional because it was material in the relevant sense – see: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [5] to [7]. If the Minister had not erroneously assumed that there were only four Australian children potentially affected by his decision, or had considered the possibility that there might have been more, the ultimate decision may have been different – see: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [64] to [65]; Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; 303 FCR 261 at [85].

Conclusion

63    The application for judicial review should be allowed with costs.

Associate:

Dated:    31 August 2026