Federal Court of Australia

Mukhtar v Minister for Immigration and Citizenship [2026] FCA 1337

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, as assessed if not agreed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    The applicant, Elnour Ibrahim Abdalla Mukhtar, seeks judicial review of a decision made personally by the respondent, the Minister for Immigration and Citizenship, on 18 February 2025 under s 501A(2)(b) of the Migration Act 1958 (Cth). By that decision, the Minister set aside a decision of the then Administrative Appeals Tribunal made on 1 December 2023 and cancelled the applicant’s Class BB Subclass 155 Five Year Resident Return visa.

2    The application is made under s 476A. The applicant seeks orders in the nature of certiorari and mandamus, together with an order for costs.

3    The applicant advances three grounds of review. The parties identify those grounds as follows. Ground 1 alleges that the Minister denied the applicant procedural fairness. Ground 3 advances three distinct challenges arising from two periods during which the applicant was not detained. Those challenges are expressed as legal unreasonableness or irrationality, constructive failure to exercise jurisdiction, and denial of procedural fairness. Ground 4 alleges that the Minister’s exercise of the power under s 501A(2) was rendered invalid by the period that elapsed between the Tribunal’s decision and the Minister’s decision. Ground 2, which alleges that the cost of law enforcement was an irrelevant consideration, is not pressed.

ISSUES

4    The application raises the following issues:

(1)    whether procedural fairness required the Minister to notify the applicant that the cost to the community of law enforcement might bear upon the Minister’s assessment of the seriousness of the applicant’s offending and, if there was a denial of procedural fairness, whether the denial was material (Ground 1);

(2)    whether either of the periods during which the applicant was not detained provides a basis for concluding that the Minister’s assessment of the applicant’s risk of reoffending, the potential harm to the Australian community, or the weight to be given to community protection was legally unreasonable or irrational (Ground 3 – limb 1);

(3)    whether the Minister proceeded upon an erroneous assumption that the applicant would be detained promptly after the visa was cancelled such to constitute a constructive failure to exercise jurisdiction (Ground 3 – limb 2);

(4)    whether procedural fairness required the Minister, before making the decision, to notify the applicant that there was a possibility that he would not be detained promptly after cancellation of his visa (Ground 3 – limb 3);

(5)    whether the power under s 501A(2) was affected by the period between the Tribunal’s decision and the Minister’s decision (Ground 4); and

(6)    what relief, if any, should be granted.

5    Grounds 3 and 4 refer in part to the same chronology but raise different legal questions. Ground 3 challenges aspects of the reasoning and process by which the Minister made the decision. Ground 4 contends that the passage of time affected the continued availability of the statutory power itself.

STATUTORY FRAMEWORK

6    Section 501A(2) authorised the Minister to set aside the Tribunal’s decision and cancel the applicant’s visa if the Minister reasonably suspected that the applicant did not pass the character test, did not satisfy the Minister that he passed that test, and the Minister was satisfied that cancellation was in the national interest. The power is discretionary.

7    It is common ground that the rules of natural justice applied to the exercise of power under s 501A(2). The exclusion of natural justice under s 501A(4) concerns the separate power conferred by s 501A(3).

8    Section 189(1) provides:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.

9    The parties differ as to the significance of s 189(1) in the present application. The applicant submitted that the mandatory obligation to detain him arose upon his becoming an unlawful non-citizen. The Minister submitted that the obligation arises only if an officer knows or reasonably suspects that a person is an unlawful non-citizen, and that the evidence does not establish that any officer held the requisite state of mind.

BACKGROUND

10    The applicant is a citizen of Sudan. He arrived in Australia on 23 April 2009 as the holder of a subclass 200 (refugee) visa. On 25 November 2022, he was granted the subclass 155 visa that is the subject of this proceeding.

11    The applicant’s criminal history included two episodes of offending considered by the Tribunal and the Minister in the context of family violence. The Tribunal considered both episodes to constitute family violence, while the Minister found that the applicant had perpetrated at least one act of family violence. In October 2012, the applicant was convicted of common assault arising from his assault of his then partner while she was pregnant. In February 2018, he was convicted of reckless wounding and stalking or intimidation with intent to cause fear of physical harm. The Minister considered it somewhat unclear whether the victim of the 2018 offending could be considered a family member of the applicant, but found that the applicant had perpetrated at least one act of family violence.

12    For the reckless-wounding offence, the applicant was sentenced to 18 months’ imprisonment, to be served by way of an intensive correction order. That sentence engaged ss 501(6)(a) and 501(7)(c). The applicant did not satisfy the Minister that he passed the character test, and the Minister found that he had not done so.

13    On 1 September 2023, a delegate cancelled the applicant’s visa under s 501(2). In doing so, the delegate found that the protection of the Australian community weighed significantly in favour of cancellation. On 1 December 2023, the Tribunal set aside the delegate’s decision and substituted a decision not to cancel the visa. The visa was thereby reinstated.

14    The applicant was not detained during the 92 days between those decisions. The applicant also relies on the Minister’s admission that no attempt was made to detain him during that period. The parties disagreed as to whether, and if so what, inference should be drawn from those matters concerning the Department’s assessment of the risk posed by the applicant to the Australian community.

15    On 6 September 2024, the Department of Home Affairs gave the applicant notice that the Minister would consider whether to exercise the power under s 501A(2). The notice invited the applicant to address whether he passed the character test, whether cancellation of his visa would be in the national interest, and why his visa should not be cancelled even if he did not pass the character test and cancellation was in the national interest. The notice identified materials relevant to the applicant’s criminal history and the Tribunal’s reasons as documents which the Minister would consider. “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA” was also provided to the applicant as a broad indication of the matters that the Minister was likely to take into account, although the notice explained that the Minister was not required to consider it when exercising the power personally. The applicant responded to the notice on 4 October 2024, conceded that he did not pass the character test, and submitted that his risk of reoffending was low.

16    On 18 February 2025, the Minister set aside the Tribunal’s decision and cancelled the applicant’s visa. The applicant was taken into immigration detention on 10 April 2025. The parties agreed that he was not detained during the period between the Minister’s decision and 10 April 2025. The parties disagreed as to whether that period of non-detention has any bearing on the lawfulness of the Minister’s decision.

17    This proceeding was commenced on 14 May 2025. An amended originating application was filed on 12 August 2025. By orders made on 30 July 2026, the applicant was granted leave to file a further amended originating application. The further amended originating application was filed on 4 August 2026 and is the application upon which the applicant now relies.

CONSIDERATION

Ground 1: Procedural fairness and “cost to the community in terms of law enforcement”

18    Ground 1 concerns two references in the Minister’s reasons (or M) to the cost to the community in terms of law enforcement. The first appears at M[21], in the Minister’s consideration of the applicant’s 2012 offending:

I note that the Australian government and the Australian community regard family violence very seriously. While this offending conduct occurred in 2012, I consider this offending to be serious given that the victim was pregnant and therefore vulnerable, the profound impact such violence can have on victims and the cost to the community in terms of law enforcement.

19    The second appears at M[27], after the Minister considered the applicant’s family violence offending more generally:

I find that Mr MUKHTAR has perpetrated at least one act of family violence and consider this offending to be very serious because of the profound impact of such violence on victims and the great cost to the community in terms of law enforcement and the consequences of the breakdown of family relationships.

20    Those passages must be read fairly and in the context of the Minister’s reasons as a whole. In each passage, the Minister referred to the “cost to the community in terms of law enforcement”. The word “cost” does not appear in isolation. Nor did the Minister refer expressly to financial expenditure, the cost of the applicant’s incarceration, or any quantified amount. Read in context, the Minister’s reference was to the cost or burden imposed upon the community by offending of the kind under consideration. Financial expenditure may be one aspect of that burden, but the language used by the Minister does not confine the relevant cost to financial expenditure.

21    That conclusion is reinforced by the structure of each passage. At M[21], the Minister identified three considerations bearing upon the seriousness of the 2012 offending: the vulnerability of the pregnant victim, the profound impact that family violence can have upon victims, and the cost to the community in terms of law enforcement. At M[27], the Minister referred to the profound impact of family violence upon victims, the great cost to the community in terms of law enforcement, and the consequences of the breakdown of family relationships. In each instance, the reference to cost formed part of a broader evaluative assessment of the effects and consequences of family violence.

22    The references elsewhere in the reasons to possible “physical, psychological and/or financial harm” do not support a narrower construction. Those references concern the potential forms of harm to members of the Australian community if the applicant were to reoffend. By contrast, M[21] and M[27] concern, among other things, the broader burden imposed on the community in terms of law enforcement. The two subjects are distinct. The inclusion of financial harm among the possible consequences of future offending does not convert the broader reference to the cost to the community in terms of law enforcement into a reference confined to financial expenditure.

23    It is also necessary to situate the references within the Minister’s reasoning as a whole. The Minister first addressed whether cancellation was in the national interest. In doing so, the Minister stated that the highest priority was to be given to the safety and protection of the Australian community and treated the seriousness of the applicant’s criminal conduct as relevant to that assessment. The Minister then considered the nature and circumstances of the applicant’s offending, including the 2012 offending, which the Minister treated as family violence, and the 2018 offending, which the Tribunal had characterised as family violence but in respect of which the Minister considered that characterisation to be unclear. See M[11]-[34].

24    The observations at M[21] and M[27] were made in the course of that evaluation. They were not findings based on new factual information personal to the applicant, but general evaluative conclusions about the burden that offending of the kind disclosed may impose on the community through law enforcement. Those conclusions formed part of the Minister’s assessment of the seriousness of the applicant’s offending. The Minister ultimately concluded that the applicant had an extensive criminal record, that there had been a trend of increasing seriousness, that his offending was very serious, and that permitting non-citizens who had engaged in very serious offending of that kind to remain in Australia as holders of permanent visas was not in the national interest: M[34].

25    The Minister then separately assessed the likelihood that the applicant would reoffend and the possible harm to the Australian community if that risk eventuated. The Minister found that the risk of reoffending was low but not negligible and remained ongoing. The Minister then weighed the seriousness of the applicant’s conduct, the potential harm to the Australian community if further offending occurred, and the likelihood of reoffending. Having regard to those matters, the Minister concluded that the protection of the Australian community weighed heavily in favour of finding that cancellation of the applicant’s visa was in the national interest: M[35]-[59].

26    In exercising the discretion under s 501A(2), the Minister gave due weight to the earlier discussion of the national interest and relied on the discussion rather than repeating it. The assessment of the seriousness of the applicant’s offending, including the conclusions at M[21] and M[27], therefore also formed part of the Minister’s exercise of the discretion. The Minister then weighed the considerations favouring cancellation against those weighing against it before deciding to set aside the Tribunal’s decision and cancel the visa: M[69]-[121].

27    The applicant submitted that procedural fairness required the Minister to notify him that the cost of law enforcement might inform the assessment of the seriousness of his offending. He accepted that he was notified that the nature and seriousness of the offending, including offending involving family violence, would be considered. His submission was that, although it was obvious that the seriousness of the offending might be assessed by reference to his culpability and the direct consequences of his offending, it was not obvious that the cost to the community in terms of law enforcement would contribute to the degree of seriousness attributed to the offending. The notice informed the applicant that he might wish to consider Direction No 110 in preparing his response, as it provided a broad indication of the matters that the Minister was likely to take into account, while explaining that the Minister was not required to consider Direction No 110 when exercising the power personally. The applicant relied on the absence from Direction No 110 of any express reference to the cost of law enforcement as a consideration bearing upon the seriousness of offending.

28    In oral argument, the applicant initially submitted that the references at M[21] and M[27] should be understood as references to financial cost. When a broader construction was raised during the hearing, the applicant submitted in the alternative that his procedural fairness argument applied even if the word “cost” extended to non-financial burdens. On either construction, the applicant maintained that he had been denied procedural fairness because he had not been notified that the cost or burden associated with law enforcement might be taken into account in assessing the seriousness of his offending.

29    The applicant also submitted that the cost of law enforcement could have a personal component because its extent might vary according to his particular circumstances. Counsel contrasted the law-enforcement costs associated with a person detained for a lengthy period with those associated with the applicant, who was said to have been detained for only three weeks. The applicant nevertheless accepted that whether information was personal to him was not determinative of the procedural fairness inquiry, and maintained that the governing question was whether the Minister’s use of the cost or burden of law enforcement in assessing the seriousness of his offending was obvious from the known material.

30    The Minister submitted that the applicant was on notice that the nature and seriousness of his offending would be assessed. The applicant had been provided with materials concerning his criminal history and sentencing, including the police facts sheets and the Tribunal’s reasons. He was invited to comment on those materials and did so. The Minister submitted that the observations at M[21] and M[27] concerning the cost to the community in terms of law enforcement were general evaluative conclusions that obviously arose from the disclosed material and formed part of the assessment of the seriousness of the offending. On that basis, the Minister submitted that consideration of that cost or burden did not involve reliance on new adverse information or raise a separate critical issue about which the applicant should have been given express notice.

31    In oral submissions, the Minister placed particular reliance on James v Minister for Immigration and Border Protection [2017] FCA 410 (Robertson J). The Minister submitted that paragraph [16] demonstrated that the burden imposed by offending on legal and law-enforcement institutions, including the accompanying financial cost, could be considered in assessing the seriousness of the offending. The Minister therefore submitted that James is directly on point and was not merely an illustration of a more general principle expressed at a higher level of abstraction.

32    The applicable principles are not in dispute. Procedural fairness may require a decision-maker to identify an issue critical to the decision that is not apparent from the nature of the decision or the statutory context. It may also require the decision-maker to disclose a potential adverse conclusion that is not obviously open on the known material. However, procedural fairness does not ordinarily require the decision-maker to disclose each step in the reasoning process by which that material may be evaluated: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

33    In James, the Minister considered the considerable burden placed on Australian legal and law-enforcement institutions, together with the accompanying financial cost, as a cumulative effect of the applicant’s offending. That is made plain at paragraph [16].

34    The procedural fairness challenge in James concerned the Minister’s reliance on the general burden placed by the applicant’s offending on Australian legal and law-enforcement institutions and the accompanying financial cost, without first notifying the applicant that this consideration might be taken into account: at [26], [32]. Robertson J rejected the claim that this amounted to procedural unfairness because the applicant had been given the material concerning his offending and an opportunity to address it, and the impugned consideration was an obvious inference and part of the natural evaluation of that material: at [44]-[46]. Paragraph [16] of James records that the Minister took that consideration into account in assessing the seriousness of the offending.

35    In the present case, the applicant submitted that the impugned consideration was nevertheless personal to him because the extent of any law enforcement cost depended upon the circumstances pertaining to him personally, including the comparatively short period for which he had been detained. I do not accept that submission. The Minister did not purport to calculate a cost attributable to the applicant’s period of detention. The references at M[21] and M[27] concerned the burden or cost to the community in terms of law enforcement arising from the type of offending in which the applicant had engaged. That was an evaluative consequence of the nature and circumstances of the offending, rather than undisclosed personal information of the kind considered in Kioa v West [1985] HCA 81; 159 CLR 550: James at [46].

36    In reply, the applicant accepted that the Minister in James had used the burden and cost of law enforcement in assessing the seriousness of the offending. He maintained, however, that the procedural fairness ground determined at [44]-[46] did not specifically allege that notice was required before that consideration could inform the assessment of seriousness. I do not accept that this distinction alters the application of James. Paragraph [16] of James identifies the evaluative use to which the Minister put the consideration. In determining the procedural fairness ground, Robertson J held that the conclusion concerning the burden and cost imposed on legal and law-enforcement institutions was an obvious and natural evaluation of the disclosed material. That reasoning is not properly understood as confined to the existence of such a burden or cost, divorced from the assessment of seriousness in which the Minister employed it.

37    The reasoning in James supports the same conclusion in the present case. In both cases, the decision-maker was engaged in an evaluative assessment of the seriousness of known offending. James at [16] identifies the burden and accompanying financial cost as matters taken into account in the Minister’s assessment that the cumulative effect of the offending further increased its seriousness. James at [44]-[46] then determine ground 5 by holding that consideration of the burden and accompanying cost did not deny procedural fairness because the consideration did not involve personal information, was an obvious inference, and was an obvious and natural evaluation of the known material. In each case, the burden imposed upon the community and its law-enforcement institutions was treated as a consequence of the type of offending that bore on the assessment of its seriousness. Consideration of that cost or burden to the community was part of the evaluative conclusion available from the nature and circumstances of the offending disclosed to the applicant.

38    Nor does it matter that the applicant might have disputed the weight to be given to that consequence. As Robertson J explained in James at [46], to describe the evaluation as obvious does not mean that every decision-maker would necessarily draw the inference. The relevant question is whether it was obvious that a decision-maker might draw it. Given the disclosed nature, circumstances and cumulative effect of the offending, it was obvious that a decision-maker might regard the resulting burden upon the community and the institutions responsible for law enforcement as relevant to the assessment of seriousness of the type of offending that had been identified.

39    Whether “cost” is understood as referring to financial expenditure, the broader burden imposed on the community through law enforcement, or both, the conclusion is the same. On either construction, the Minister was evaluating a consequence of the applicant’s disclosed offending of the kind considered in James. Consistently with the reasoning in James, I find that this was an obvious matter arising from the material before the Minister and forming part of the evaluative exercise undertaken under s 501A(2). Accordingly, I am not satisfied that the applicant was denied procedural fairness by the Minister’s failure to give express notice that the cost or burden associated with law enforcement might be taken into account in assessing the seriousness of his offending.

40    The Minister also relied on Creamer v Minister for Immigration and Border Protection [2018] FCA 269 (Murphy J) and Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924; 305 FCR 214 (Rofe J) as subsequent applications of the reasoning in James. The Minister accepted that Creamer concerned the cost of incarceration in the distinct evaluative context of the applicant’s contribution to the community. The Minister relied on Creamer as illustrating the application of the same reasoning where an obvious cost or burden arising from the known material was taken into account as part of a broader evaluative assessment. The Minister relied on Muller because Rofe J treated the expenditure or diversion of public funds as a natural evaluation and obvious inference from the material before the decision-maker, while accepting that the circumstances in which notice had been given in Muller differed from the present case.

41    Direction No 110 does not lead to a different conclusion. Direction No 110 identified family violence as conduct viewed very seriously by the Australian community, and required consideration of the nature and seriousness of the applicant’s conduct, including the frequency and cumulative effects of any family violence. The fact that the direction is silent about the cost to the community in terms of law enforcement did not suggest that no such evaluation might be made as part of the Minister’s assessment of the seriousness of the disclosed offending. Nor did Direction No 110 purport to exhaust the evaluative conclusions that might obviously be drawn from the materials concerning that offending. That is particularly so in circumstances where, as here, the Minister was not bound to comply with Direction No 110 and the notice alerted the applicant to that fact and provided Direction No 110 on the basis that it provided a broad indication of the types of issues that the Minister was likely to take into account.

42    I do not accept the applicant’s submission that the impugned consideration involved information personal to him in the relevant sense. The Minister did not rely upon the actual monetary cost of the applicant’s detention or any other undisclosed fact peculiar to his circumstances. Rather, the Minister drew a general evaluative conclusion about the burden that offending of the kind disclosed by the materials imposes upon the community in terms of law enforcement.

43    The applicant knew that the nature and seriousness of his offending were to be considered. He knew the underlying factual material upon which that assessment would be based and was given an opportunity to address it. Procedural fairness did not require the Minister also to identify that the cost or burden imposed on the community in terms of law enforcement was one of the evaluative consequences that might be drawn from that material.

44    It follows that the Minister was not required to give the applicant a further opportunity to address the considerations reflected in the impugned references at M[21] and M[27]. As no denial of procedural fairness has been established, it is unnecessary to determine the parties’ submissions concerning materiality. Ground 1 is not made out.

Ground 3

Limb 1: Legal unreasonableness or irrationality arising from non-detention

45    The applicant’s argument under Limb 1 depends principally upon two periods during which he was not detained. The first was the 92-day period between the delegate’s cancellation decision on 1 September 2023 and the Tribunal’s decision on 1 December 2023. The second was the 52-day period between the Minister’s decision on 18 February 2025 and the applicant’s detention on 10 April 2025.

46    The applicant submitted that those periods are inconsistent with the Minister’s assessment of the risk that he posed to the Australian community. The Minister assessed the likelihood of the applicant reoffending as low, but not negligible, and found that an ongoing, albeit somewhat reduced, likelihood of reoffending remained. The Minister also considered that, if the applicant reoffended, the resulting harm could be serious. In undertaking the national interest assessment, the Minister gave the highest priority to the safety and protection of the Australian community. Having considered the seriousness of the applicant’s offending, the likelihood of further offending and the potential harm if it occurred, the Minister concluded that the risk posed by the applicant was unacceptable. The protection of the Australian community therefore weighed heavily in favour of concluding that cancellation was in the national interest.

47    The assessment of risk also informed the exercise of the discretion under s 501A(2). The Minister gave due weight to the matters discussed in the national interest assessment and relied on that discussion rather than repeating it. In exercising the discretion, the Minister weighed the protection of the Australian community and the other considerations favouring cancellation against the considerations favouring the applicant. The applicant submitted that the Minister’s conclusion that the protection of the Australian community weighed heavily in favour of cancellation cannot rationally be reconciled with the absence of any attempt to detain him during the two periods upon which he relies.

48    The applicant’s statutory premise was that, by operation of s 82(1), his visa ceased to be in effect upon cancellation and he thereby became an unlawful non-citizen within the meaning of s 14(1). The applicant submitted that this change in status engaged s 189(1) and the obligation under that provision to detain him. Section 189(1) 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. The applicant submitted that, although s 189(1) does not expressly state the time within which detention must occur, its mandatory language, read with the associated provisions governing the consequences of cancellation, detention and removal, required his detention immediately or promptly upon him becoming an unlawful non-citizen in the migration zone or, alternatively, within a reasonable time thereafter.

49    The applicant did not take the Court to any authority in support of his contention as to the proper construction of s 189(1). There is good reason for that. The submission elides established authority governing the construction of s 189(1). The High Court has held that the question raised by s 189(1) is whether an officer knew or held a reasonable suspicion that the person to be detained was an unlawful non-citizen, not whether the person in fact had that status. The knowledge, or reasonable suspicion, of the relevant officer is a jurisdiction fact: Thoms v Commonwealth of Australia [2022] HCA 20; 276 CLR 466 at [25] (Kiefel CJ, Keane and Gleeson JJ), [49] (Gordon and Edelman JJ), citing Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [26]-[28] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

50    The applicant does not rely upon the delay in his detention, considered in isolation, as invalidating the decision. Rather, he relied upon the absence of any attempt to detain him during the two periods in which he was an unlawful non-citizen as exposing what he characterises as an internal contradiction between the Minister’s assessment of risk and the governmental response to that risk. The applicant submitted that this asserted contradiction is sufficient to establish legal unreasonableness. He contended that it was irrational for the Minister to conclude that the applicant’s visa should be cancelled because he posed an unacceptable risk to the community, in circumstances where the governmental response to that risk permitted the applicant to remain in the community after each cancellation decision. The applicant also relied upon the time taken to commence and complete the s 501A(2) process as reinforcing the asserted inconsistency between the Minister’s assessment of risk and the absence of urgency in responding to it.

51    The two periods of non-detention must be addressed separately. The first preceded the Minister’s decision and was known to the Minister. The second occurred after the Minister had exercised the power under s 501A(2) to cancel the applicant’s visa. That distinction is important because legal reasonableness is assessed by reference to the circumstances existing when the power was exercised. Events occurring after the decision cannot establish that the decision was legally unreasonable when made: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

The pre-decision period

52    The applicant was not detained during the 92 days between the delegate’s cancellation decision and the Tribunal’s decision. The Minister also admitted that no attempt was made to detain the applicant during that period. Those facts were available when the Minister made the decision under review. They do not, however, establish the statutory or factual premise upon which the applicant’s argument depends.

53    In advancing this limb of ground 3, the applicant conflates the function performed by an officer under s 189(1) with the function performed personally by the Minister under s 501A(2). Section 189(1) does not require detention merely because a visa has been cancelled or because the person is, as a matter of objective fact, an unlawful non-citizen. The obligation arises if an officer knows or reasonably suspects that the person is an unlawful non-citizen. There is no evidence establishing when, if at all during the relevant period, any officer formed that state of mind. Further, the state of mind required by s 189(1) concerns the person’s status as an unlawful non-citizen. It does not involve an assessment of risk that the person poses to the community.

54    There is no evidence identifying an officer who, during the 92-day period, knew or reasonably suspected that the applicant was an unlawful non-citizen, or when any officer formed that state of mind. The admitted absence of an attempt to detain the applicant does not itself establish that the condition upon which s 189(1) operated was satisfied. It is therefore unnecessary to determine whether, once that condition is satisfied, detention must occur immediately, promptly, as soon as reasonably practicable or within a reasonable time.

55    The evidence does not identify any particular officer who held the state of mind prescribed by s 189(1), or the time at which that state of mind was formed. The evidence concerning the applicant’s location and the absence of any attempt to detain him does not, without more, establish that an officer knew or reasonably suspected during the relevant period that he was an unlawful non-citizen.

56    The applicant relied upon Blatch v Archer [1774] 98 ER 969 and submitted that evidence concerning the state of mind of departmental officers was peculiarly within the Minister’s knowledge and power. Even if the principle in Blatch v Archer was engaged, that principle would not operate to reverse the onus. The applicant bears the burden of establishing the asserted jurisdictional error. The applicant administered a notice to admit to the Minister by which the Minister admitted that attempts were not made to detain the applicant during the two periods in which he was an unlawful non-citizen at large in the community. The applicant did not seek admissions in relation to whether any officer at any time in either of those periods knew or suspected that the applicant had that status. The absence of evidence from the Minister on this issue cannot fill the gap in the applicant’s evidence even if the quality of the applicant’s evidence on this issue falls to be assessed by reference to the principle in Blatch v Archer. The applicant’s evidence (including the admissions tendered through the notice to admit) did not address the issue of whether the state of mind condition in s 189(1) was satisfied and, if so, when that was.

57    The Full Court’s reasoning in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19; 315 FCR 207 (Bromwich, Thawley and Kennett JJ) (XMBQ Full Court) does not require a different approach. That decision confirms that there is no general rule by which a temporal limitation is implied into every statutory power or duty. Whether such a limitation arises depends upon the text and context of the particular provision. The Full Court nevertheless recognised that temporal implications may more readily arise in a statutory context concerning individual liberty. It is unnecessary in the present case to determine whether, and if so what, temporal limitation is implicit in s 189(1) because the evidence does not establish when, if at all during the relevant period, any officer formed the state of mind upon which the duty depended.

58    It follows that the absence of detention during the first period does not establish that an officer assessed the applicant as posing no appreciable risk to the community. Section 189(1) did not require an officer to assess that question. The assessment required of the Minister under s 501A(2) was distinct. It required the Minister personally to assess whether cancellation was in the national interest and whether the discretion to cancel the applicant’s visa should be exercised. The Minister was required to form his own view about the applicant’s risk of reoffending and the possible harm to the community. Any conduct, inaction or assessment by an officer subject to the duty imposed by s 189(1) did not determine, and could not substitute for, the Minister’s assessment when the Minister came to exercise the power under s 501A(2).

59    The Minister expressly considered the applicant’s submission that his non-detention following the delegate’s decision showed that the Department no longer regarded him as presenting an appreciable risk. The Minister rejected that submission as speculative and proceeded to form his own view of the risk posed by the applicant on the material before him: M[49]. The fact that the Minister addressed that submission does not immunise the reasoning from review. It does, however, confirm that the Minister did not overlook the pre-decision period or proceed upon the premise that it demonstrated an earlier departmental assessment consistent with the Minister’s own assessment. The Minister was not merely entitled to form his own assessment of the applicant’s risk in exercising the personal power under s 501A(2), he was required to do so. Any assessment that might have been made by an officer subject to the duty imposed by s 189(1) could not substitute for, or bind the Minister in, that task.

The argument based on ss 5(3) and 5(4)

60    In oral reply, the applicant advanced a further argument based upon ss 5(3) and 5(4). Section 5(3) provides that any power that may be exercised by an officer may also be exercised by the Minister. Section 5(4) relevantly provides that a reference to the exercise of a power by an officer, where that power may also be exercised by the Minister under s 5(3), is to be construed as including a reference to the exercise of that power by the Minister. The applicant submitted that the combined effect of those provisions was to extend the reference to an officer in s 189(1) to the Minister personally.

61    It is unnecessary to determine whether ss 5(3) and 5(4) have the effect for which the applicant contends. That issue raises a threshold question whether provisions expressed to concern the exercise of a “power” by an officer apply to the mandatory obligation imposed by s 189(1). It is not obvious how the plain text of s 5(4) supports the applicant’s construction. Section 189(1) does not answer the description in s 5(4) of being a provision which makes reference to the exercise of a power. Rather, section 189(1) in its terms imposes a duty on “officers” with the specified state of mind: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 at [11]-[12]. While it may be accepted that the exercise of a power is implicit in the performance of that duty, that does not readily support the conclusion that s 189(1), when read with s 5(4), imposed a duty on the Minister. As mentioned, this argument was only raised by the applicant in oral reply. It was not the subject of developed submissions. For that reason, for the purpose of these reasons, I will assume without deciding that the applicant’s construction is available. Even on that assumption, however, the applicant’s construction does not establish that the Minister’s decision was legally unreasonable by reference to either the pre-decision period or the post-decision period.

62    To support the applicant’s construction, the applicant submitted that where the Minister knew that a personal cancellation decision had rendered a person an unlawful non-citizen, s 189(1) required the Minister to cause an officer to detain the applicant on his behalf. The applicant did not submit that the Minister was required personally to perform the physical act of detention. The applicant relied on that construction to answer the Minister’s distinction between the personal exercise of power under s 501A(2) and the exercise of the duty imposed by s 189(1) by departmental officers. The ultimate submission was that the Minister’s asserted capacity and obligation to cause the applicant’s detention prevented the Minister from distancing the personal cancellation decision from the administration of s 189(1). The absence of prompt detention was therefore said to be incapable of rational reconciliation with the Minister’s findings that the applicant posed an unacceptable risk to the community and that community protection weighed heavily in favour of cancellation.

63    The first cancellation decision was made by a delegate on 1 September 2023. The applicant’s proposed construction of ss 5(3) and 5(4) does not dispense with the state of mind required by s 189(1). There is no evidence that, during the 92-day period, the Minister knew or reasonably suspected that the applicant was an unlawful non-citizen, or that identifies when, if at all, the Minister formed any such state of mind. There is also no evidence that the Minister acted or purported to act under s 189(1) or made any decision about whether or when the applicant should be detained. It is therefore not possible to identify when any duty imposed on the Minister, assuming the applicant’s construction to be correct, was engaged or whether there was any delay in its performance.

64    Even assuming that ss 5(3) and 5(4) operate in the manner contended for by the applicant, the argument does not establish that the Minister held the state of mind prescribed by s 189(1) during the first period or that he proceeded on the basis that detention would occur promptly following his decision. Nor does it justify attributing to the Minister the knowledge or inaction that the applicant seeks to impute to unidentified departmental officers. The evidentiary gap therefore remains, whether the operation of s 189(1) is considered by reference to an officer or, on the applicant’s assumed construction, by reference to the Minister personally.

65    Accordingly, it is established that the applicant was not detained during the first period and that, as the Minister admits, no attempt was made to detain him. Those facts do not establish that an officer or the Minister held the state of mind required by s 189(1), when any such state of mind was formed, or that anyone assessed the applicant as posing no appreciable risk to the community. In those circumstances, the Court cannot determine whether the duty imposed by s 189(1) was engaged during the relevant period or whether there was any delay in its performance. The first period therefore does not establish that the Minister’s later and independent assessment of the applicant’s risk under s 501A(2) lacked an evident and intelligible justification.

The post-decision period

66    The applicant was not detained until 10 April 2025, after the Minister had cancelled his visa on 18 February 2025. In oral argument, the applicant accepted that the post-decision period could not bear upon Limb 1. That concession was correctly made. What occurred after the decision could not have formed part of the circumstances existing at the time the Minister exercised the power and could not, of itself, retrospectively render the decision legally unreasonable: DUA16 at [26].

67    In any event, the evidence concerning the post-decision period would not establish the connection for which the applicant contends. It does not identify when the state of mind required by s 189(1) was formed, explain the operational steps taken within the Department after cancellation, or establish that the Minister personally directed the timing of the applicant’s detention, delayed it, or assumed responsibility for the Department’s implementation of the cancellation decision. The later interval therefore does not illuminate the legality of the reasoning by which the cancellation decision was made. Nor does it demonstrate that the Minister’s assessment of the applicant’s risk lacked an evident and intelligible justification.

68    The applicant’s broader reliance on the time taken to issue the notice and make the decision does not alter that conclusion. Neither period establishes that the Minister’s assessment of risk was irrational. The Minister did not find that the applicant was likely to reoffend immediately. The Minister repeatedly assessed the likelihood of reoffending as low, although not negligible and ongoing. The Minister’s conclusion that the risk posed by the applicant was unacceptable reflected the combination of that likelihood with the potential seriousness of the harm that might result if further offending occurred. The reasons disclose an evident and intelligible justification for that conclusion.

69    The applicant also relied upon the Minister’s choice to proceed under s 501A(2), rather than s 501A(3), notwithstanding that the former course required the applicant to be afforded natural justice. That choice does not establish irrationality. The applicant did not identify any statutory requirement that the Minister proceed under s 501A(3) whenever the protection of the Australian community was relevant, or any basis upon which the Court could infer that the choice of statutory process contradicted the Minister’s assessment of risk.

70    Nor does the period between the applicant’s conviction on 8 February 2018 and his detention on 10 April 2025 establish the asserted inconsistency. Before the cancellation of his visa on 1 September 2023, the applicant held a visa and was therefore not an unlawful non-citizen within the meaning of s 14(1). Accordingly, he could not during that period have been detained under s 189(1). The interval between the conviction and the first cancellation decision therefore does not establish that an officer had assessed the applicant as posing no appreciable risk or that the Minister’s later assessment under s 501A(2) was irrational.

71    The applicant relied on AOR24 v Minister for Immigration and Citizenship [2026] FCA 467 (O’Sullivan J) and KPA25 v Minister for Immigration and Citizenship [2025] FCA 1188 (Rangiah J), in which other unlawful non-citizens who had overstayed their visas were detained. He submitted that those cases demonstrated that detention ordinarily occurred even where the visa cancellation did not reflect an assessment that the person posed a risk to the community. On that basis, the applicant contended that his non-detention was difficult to reconcile with the Minister’s assessment that he posed an unacceptable risk.

72    The comparison does not assist the applicant. Section 189(1) requires an officer to detain a person if the officer knows or reasonably suspects that the person is relevantly an unlawful non-citizen. The obligation does not depend upon the officer assessing the person as posing a risk to the community. Further, as outlined above, the evidence does not establish when an officer in the applicant’s case held the state of mind prescribed by s 189(1), or permit a comparison between the circumstances in which detention occurred in the three cases. The circumstances pertaining to the detention of the applicants in AOR24 and KPA25 do not support the making of an inference about the state of mind of any officer in the present case or demonstrate that the Minister’s distinct assessment of risk under s 501A(2) was irrational.

Conclusion on Limb 1

73    The periods of non-detention therefore do not establish an inconsistency that renders the Minister’s decision legally unreasonable or irrational. In relation to the pre-decision period, the applicant’s argument conflates the statutory function and state of mind of an officer under s 189(1) with the Minister’s personal assessment under s 501A(2). Whether the argument is considered by reference to an officer or, on the applicant’s assumed construction of ss 5(3) and 5(4), by reference to the Minister, the evidence does not establish that the prescribed state of mind was held or, if it was, when it was formed. It is therefore unnecessary to determine the temporal content, if any, of the duty imposed by s 189(1). In relation to the post-decision period, the subsequent timing of detention cannot bear upon the legal reasonableness of the decision when made and does not, in any event, establish personal inaction or any assumption by the Minister relevant to the reasoning under review. Limb 1 is not made out.

Limb 2: Alleged assumption of prompt detention

74    Limb 2 alleges that the Minister’s decision proceeded on the false premise that cancellation would be followed by the applicant’s prompt detention, so as to constitute a constructive failure to exercise jurisdiction. The applicant submitted that the interval between cancellation and detention demonstrates that premise to have been false. Because the assumed prompt detention is said to have informed the weight attributed to community protection in both the national interest assessment and the exercise of the discretion, the applicant characterised the error as material.

75    The Minister gave the highest priority to the safety and protection of the Australian community. The Minister assessed the likelihood of the applicant reoffending as low, but not negligible, and ongoing. Having regard to the potentially serious harm that might result if that risk eventuated, the Minister concluded that the risk posed to the community was unacceptable and that community protection weighed heavily in favour of cancellation. That assessment informed both the Minister’s satisfaction that cancellation was in the national interest and the exercise of the discretion under s 501A(2).

76    The applicant submitted that, read in its statutory context, the Minister’s reasons give rise to an irresistible inference that the Minister assumed an officer or officers would be ready, willing and able to detain the applicant promptly following cancellation. The applicant did not identify any passage in which the Minister expressly stated that detention would occur promptly. Rather, the applicant submitted that such an assumption arises by necessary implication from the Minister’s personal exercise of the cancellation power, the Minister’s position in relation to the Department, the conclusion that cancellation was in the national interest, and the weight attributed to community protection.

77    The applicant distinguished prompt detention from immediate detention. His case is that the Minister assumed that detention would occur promptly, and that the fact that he was not detained until 10 April 2025, following the decision of 18 February 2025, demonstrates that assumption to have been false. The alleged legal error is that the Minister exercised the power under s 501A(2) on that false factual premise.

78    The applicant submitted that the alleged error was material. Had the Minister not made the alleged assumption, the Minister might have appreciated that cancellation would not result in the applicant’s prompt removal from the community and that the community might remain exposed to the assessed risk for a further period. The applicant submitted that the Minister might, in those circumstances, have given less weight to community protection in assessing both the national interest and the exercise of the discretion. Given the considerations weighing against cancellation, the applicant submitted that the Minister might then have resolved the balance differently.

79    I do not accept that the Minister’s reasons disclose the alleged assumption. Nothing in the reasons states that an officer was ready, willing and able to detain the applicant promptly following the cancellation of his visa. Counsel for the applicant accepted that no particular passage in the reasons expressed such an assumption. The question is therefore whether it arises as a necessary inference from the reasons and the statutory context.

80    It does not. The Minister’s assessment of community protection did not depend upon a finding about when detention would occur. The Minister assessed the likelihood of reoffending as low, but not negligible, and ongoing, and considered the potentially serious harm that might result if that risk eventuated. The conclusion that the risk posed to the community was unacceptable reflected the combination of those matters. It did not require an assumption that cancellation would be followed by prompt detention or by detention within any particular period.

81    To consider Limb 2, I assume for the purpose of argument, that ss 5(3) and 5(4) have the effect for which the applicant contends. On the assumed construction, s 189(1) extended to the Minister and required the Minister, upon forming the prescribed state of mind, to cause the applicant to be detained. That does not establish the further factual premise that detention would occur promptly. The existence of a duty to cause detention once the statutory conditions were satisfied is distinct from an assumption about the time within which detention would in fact be effected.

82    Nor does the personal character of the Minister’s decision under s 501A(2) support the proposed inference. Even on the assumed construction of ss 5(3), 5(4) and 189(1), it does not follow that the Minister personally assumed responsibility for the operational implementation of the cancellation decision or formed a view about when detention would occur. The Minister’s task under s 501A(2) was to determine whether the statutory conditions were satisfied and whether the discretion to cancel the visa should be exercised. The performance of that task did not require the Minister to form an expectation about the timing of detention and the Minister’s reasons do not suggest that he did so.

83    The post-decision interval does not establish otherwise. The applicant’s detention on 10 April 2025 establishes what occurred after the decision, but not what the Minister understood or assumed at the time of making the decision on 18 February 2025. There is no evidence identifying when an officer, or the Minister on the assumed construction, formed the state of mind prescribed by s 189(1). Nor is there evidence of the operational steps taken following cancellation, the time ordinarily required to implement a cancellation decision, or the reason why the applicant was not detained earlier.

84    The Court cannot infer the content of the Minister’s reasoning from an unexplained later event where the alleged assumption is neither expressed in the reasons nor necessary to the reasoning they disclose. The applicant has not established the necessary connection between the post-decision interval and the state of mind he seeks to attribute to the Minister at the time of the decision.

85    The Minister’s reasons disclose an assessment of the applicant’s offending, the likelihood of reoffending, the possible consequences of reoffending, and the competing considerations bearing upon the national interest and the exercise of the discretion. They do not disclose that the weight attributed to the protection of the Australian community depended upon an expectation that the applicant would be detained promptly following cancellation.

86    The alleged false premise is therefore not established. Because the Minister’s reasoning did not proceed upon the alleged assumption, and the subsequent timing of the applicant’s detention does not establish otherwise, it is unnecessary to consider materiality. Limb 2 is not made out.

Limb 3: Procedural fairness regarding future non-detention

87    The applicant submitted that procedural fairness required the Minister, before making the decision, to notify him that there was a possibility that he would not be detained promptly after cancellation of his visa. The applicant submitted that, had this been disclosed, he could have argued that the prospect of his remaining in the community affected the assessment of the risk to which the community would be exposed, or warranted the attribution of less weight to the protection of the Australian community in the national interest assessment and the exercise of the discretion.

88    Nothing in the Minister’s reasons indicates that the timing of any detention was a critical issue upon which the decision would turn. As explained in relation to Limb 2, the Minister’s assessment of the risk posed by the applicant and the weight attributed to community protection did not depend upon any prediction as to when detention would occur. Nor does the evidence establish that the Minister had formed a view about whether detention would occur promptly or possessed information concerning the operational timetable for implementing the cancellation decision. A possibility that had not been adopted by the Minister as a premise of his reasoning, was not relevant to the reasoning he undertook, and was not based upon information before him, was neither adverse information nor an adverse conclusion that procedural fairness required him to disclose.

89    In oral argument, the applicant submitted that the Minister’s position on Limb 3 also supported Limb 2. It was said that, if the Minister did not know whether detention would occur promptly, the Minister could not have known whether an officer was ready, willing and able to detain the applicant promptly. That submission does not advance either limb. The Minister’s lack of knowledge as to when detention would occur does not establish an assumption that prompt detention would occur. Nor does it convert the mere possibility of administrative delay into an adverse matter upon which the Minister relied and which procedural fairness required him to disclose.

90    Procedural fairness did not require the Minister to disclose a future event that had not occurred and could not then be known, or to invite submissions on a possibility that was neither known to the Minister nor formed part of the reasoning on which the decision was based. The post-decision period cannot retrospectively give rise to a procedural fairness obligation that did not arise at the time the decision was made.

91    No denial of procedural fairness is established. It is therefore unnecessary to determine materiality. Limb 3 is not made out.

Ground 4: Delay and the continued existence of power

92    By Ground 4, the applicant contends that the power conferred by s 501A(2) was subject to an implied temporal limitation, such that it was required to be exercised within a reasonable time after the Tribunal’s decision. The applicant submitted that, by the time the Minister purported to exercise the power on 18 February 2025, it was no longer available, being approximately 14 and a half months after the Tribunal’s decision on 1 December 2023.

93    The applicant accepted that this Court is bound by the decision in XMBQ Full Court. In that case, the Full Court held that the analogous power conferred by s 501BA(2) was not subject to an implied temporal limitation such that the power expired if it was not exercised within a reasonable time after the decision that enlivened it. The Full Court also considered the close correspondence between ss 501A(2) and 501BA(2). Justice Thawley treated the two provisions as having an analogous structure and function within the same statutory scheme: at [33]. Justice Kennett considered the established absence of an implied temporal limitation upon s 501A(2) to provide substantial contextual support for concluding that no such limitation applied to s 501BA(2): at [103].

94    The applicant therefore presses Ground 4 formally to preserve his position pending the determination of the appeals to the High Court in XMBQ Full Court and Archer v Minister for Immigration and Citizenship [2026] FCAFC 20 (Bromwich, Thawley and Kennett JJ), in respect of both of which the High Court has granted special leave. The grant of special leave does not affect the binding force of the Full Court’s decision. I am bound to apply XMBQ Full Court. Ground 4 cannot succeed.

95    The applicant nevertheless asks the Court to determine, as a question of fact, whether the period between the Tribunal’s decision and the Minister’s decision was unreasonable. He submitted that such a finding would preserve the benefit of the Court’s determination at first instance and avoid the need for the matter to be remitted if the High Court subsequently holds that the statutory power is subject to a temporal limitation. In support of that course, the applicant relied upon the importance of determining substantial issues at first instance and upon CPDL v Minister for Immigration and Citizenship [2026] FCA 342, in which Hill J made findings concerning delay in circumstances where the parties agreed that there was utility in determining that issue: at [92].

96    I decline to make the finding sought. As the law presently stands, whether the Minister exercised the power within a reasonable time is not an issue that arises for determination under Ground 4. A finding on that question would therefore be hypothetical. The fact that the High Court may alter the binding law does not provide a sufficient basis for determining an issue that is neither necessary nor dispositive of the proceeding.

97    That course is consistent with recent decisions of single judges of this Court, including Wachipa v Minister for Immigration and Citizenship [2026] FCA 806 and Rodrigo Gomes Da Silva v Minister for Immigration and Citizenship [2026] FCA 1277. In Wachipa, Jackson J declined at [44]-[46] to determine whether the relevant period was unreasonable, because that question was hypothetical in light of the binding Full Court authority. In Da Silva, Thawley J similarly declined at [7] to make the requested factual finding because doing so would require the determination of a hypothetical issue.

98    The circumstances in CPDL were different. There, the parties agreed that there would be utility in the Court making the relevant factual findings. There is no such agreement in the present case. The Minister expressly opposes the making of a hypothetical finding. Further, the appeals in XMBQ Full Court and Archer may affect not only whether a temporal limitation exists, but also the legal principles governing the determination of whether any such limitation was exceeded. It would be inappropriate to make a factual finding by reference to a legal test that is not presently applicable and the application of which may be affected by the High Court’s decisions.

99    Nor would declining to make the finding deprive the applicant of an effective opportunity to pursue his position. If the High Court alters the governing law while this matter remains capable of appellate consideration, any resulting consequences may be addressed by an appellate court in accordance with the law as then determined. It is neither necessary nor appropriate for this Court to anticipate the High Court’s determination by deciding a hypothetical question.

100    This Court is bound by the decision in XMBQ Full Court. The applicant’s formal submission that Ground 4 should nevertheless be upheld is rejected, and the Court declines to determine whether the period preceding the Minister’s decision was unreasonable. Ground 4 is not made out.

CONCLUSION

101    For the reasons given, Ground 1 and each limb of Ground 3 are not made out. Ground 4 cannot succeed because this Court is bound by XMBQ Full Court. Ground 2 was not pressed. The application will therefore be dismissed. There is no apparent reason why costs should not follow the event. The applicant will be ordered to pay the Minister’s costs, to be assessed if not agreed.

Associate:

Dated:    10 September 2026