Federal Court of Australia

Asad v Minister for Immigration and Citizenship [2026] FCA 1477

ORDERS

THE COURT ORDERS THAT:

1.    The title of the second respondent be changed to ‘Assistant Minister for Citizenship, Customs and Multicultural Affairs’.

2.    An extension of time be refused in relation to grounds 2 and 3 in the draft third further amended originating application dated 1 June 2026 and filed by leave on 12 June 2026.

3.    An extension of time be granted in relation to part 1 of ground 1 in the draft third further amended originating application dated 1 June 2026 and filed by leave on 12 June 2026 and be treated as the third further amended originating application in relation to part 1 of ground 1.

4.    The third further amended originating application be dismissed.

5.    The applicant pay the costs of the second respondent.

6.    Pursuant to r 36.03(b) of the Federal Court Rules 2011 (Cth), the 28-day period within which to file any notice of appeal commences from the date the reasons for judgment are published.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application by Mr Adam Asad, for an extension of time to bring an application for judicial review of a decision of the second respondent, now the Assistant Minister for Citizenship, Customs, and Multicultural Affairs, made on 7 May 2025. The Assistant Minister set aside a decision of the (then) Administrative Appeals Tribunal and instead cancelled the applicant’s Five-Year Resident Return (Class BB) (Subclass 155) visa (resident return visa), pursuant to s 501BA of the Migration Act 1958 (Cth).

2    As an aspect of the extension of time application, Mr Asad also wishes to bring his application against the Minister for Immigration and Citizenship as the first respondent. However, as no decision of the Minister is challenged, nor any relief sought against him, that is neither necessary nor appropriate. It follows that the grant of an extension of time in respect of any of the grounds of review should be confined to the case sought to be brought against the Assistant Minister. For completeness, and in fairness to Mr Asad, it should be recorded that he and his legal representatives only became aware of relevant documents provided to and signed by the Assistant Minister after his submissions in this proceeding were filed.

3    For the reasons that follow, I am satisfied that the extension of time should be granted in respect of ground 1, but not grounds 2 and 3, and that the third further amended originating application so confined should be dismissed.

Background

4    On 20 August 2001, Mr Asad arrived in Australia. He was born in Iraq. On 19 October 2005, he was granted a Protection (Class XA) (Subclass 866) visa. A “protection finding” within the terms of s 197C of the Migration Act was made in relation to Mr Asad with respect to Iraq, such that, with certain exceptions, his removal to Iraq is neither authorised by nor required under the Migration Act.

5    On 17 August 2010, Mr Asad was granted the resident return visa, later cancelled by the Assistant Minister.

6    Commencing in 2014, Mr Asad has accumulated a lengthy criminal history in Australia. Of particular relevance, on 22 October 2021 he was convicted in the District Court of New South Wales of the offence of aggravated break and enter and sentenced to imprisonment for two years and three months. On 1 November 2021, as a result of that conviction, Mr Asad’s resident return visa was cancelled under s 501(3A) of the Migration Act. Mr Asad had a ‘substantial criminal record’ within the meaning of s 501(6)(c) of the Migration Act because he had been sentenced to a term of imprisonment of more than 12 months and was serving that sentence on a full-time sentence in a custodial institution at the time of the visa cancellation decision.

7    Mr Asad made a request that his visa cancellation be revoked. On 20 September 2022, a delegate of the Minister refused to revoke the visa cancellation (revocation decision). On 23 September 2022, Mr Asad applied for merits review of the delegate’s decision by the Tribunal.

8    On 14 December 2022, the Tribunal affirmed the delegate’s decision of 20 September 2022, under s 501CA of the Migration Act.

9    On 5 April 2023, a judge of this Court made orders by consent that the Tribunal’s decision of 14 December 2022 be quashed and the matter (namely, Mr Asad’s application for review of the revocation decision) be remitted to the Tribunal for determination according to law. The proceeding was heard by the Tribunal in September 2023.

10    On 17 November 2023, following the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137, Mr Asad was given a Bridging R (Subclass 070) (Bridging Removal Pending) visa (BVR) and released into the community. He remained in the community from then until the decision by the Assistant Minister on 7 May 2025. In relation to the matter before the Tribunal described at [9] above, the parties were subsequently invited to make submissions on the application of NZYQ to Mr Asad’s case.

11    On 6 February 2024, the Tribunal set aside the delegate’s revocation decision of 20 September 2022 and revoked the visa cancellation. It was upon that decision that Mr Asad’s basis for being in the community apparently changed from the BVR to the reinstated resident return visa.

12    On or about 2 July 2024, the (then) Minister, the first respondent, was provided with a ministerial submission inviting him to consider whether to set aside the Tribunal’s 6 February 2024 decision and instead cancel the applicant’s visa under s 501BA of the Migration Act. Attachment 3 to that submission was a draft statement of reasons. That draft statement of reasons was never adopted by the Minister. On 22 July 2024, the Minister decided instead to exercise the option to afford the applicant natural justice (the obligation to do so being statutorily excluded) before determining whether to exercise the power under s 501BA.

13    To give effect to the Minister’s voluntary decision to afford procedural fairness, on 19 August 2024, Mr Asad was sent a letter notifying him that the Minister was giving consideration to whether to set aside the Tribunal’s decision and cancel his visa under s 501BA(2) of the Migration Act. The letter stated that any response from Mr Asad should be received by the Minister’s Department by 23 September 2024. Mr Asad did not respond by 23 September 2024 or subsequently.

14    On about 28 March 2025, the Assistant Minister was provided with a ministerial submission inviting him to consider whether or not to exercise the power under s 501BA of the Migration Act in respect of Mr Asad. On 7 May 2025, the Assistant Minister made a decision to set aside the Tribunal’s decision and cancel Mr Asad’s resident return visa (impugned decision). Mr Asad was subsequently granted another BVR.

15    The events that followed the Assistant Minister’s decision to cancel Mr Asad’s visa are not relevant to an assessment of lawfulness of that that decision, which falls to be considered by reference to what was before the Minister at that time, and the soundness, in a jurisdictional sense, of the reasons that were given. However, the events following that decision are relied upon by Mr Asad in relation to what was known about them prior to and at the time the impugned decision was made. It is in that limited sense that they are part of a matrix of facts by which the 7 May 2025 decision is sought to be impugned. Straddling the Assistant Minister’s decision, from 31 January 2025, negotiations were taking place between the governments of Australia and Nauru to set up a third country processing arrangement to deal with members of the NZYQ cohort. That culminated in a memorandum of understanding entered into between the two countries on 29 August 2025.

16    While I note that the Republic of Nauru has since been renamed as the Republic of Naoero, that title is necessarily not in any of the evidence or other material before me, such that is convenient and appropriate to continue to refer to Nauru in these reasons.

17    On about 3 October 2025, an officer of the Department applied for a Nauruan Long Term Stay Visa (LTSV) on behalf of Mr Asad (and apparently unbeknownst to him). On 8 October 2025, Mr Asad was granted a LTSV by the Government of the Republic of Nauru.

18    On about 22 October 2025, Mr Asad was given a notice under s 76AAA of the Migration Act, and by the operation of that provision, his BVR ceased to be in effect. Mr Asad was taken into immigration detention soon after that.

The relevance of the draft reasons provided to the Minister

19    Mr Asad relies upon the abovementioned draft reasons provided to the Minister as admissions against the Assistant Minister, despite them not being adopted by the Minister. It is convenient to dispense with that argument here and now. I reject the proposition that an unsigned and otherwise unadopted set of draft reasons can be a proper basis for drawing the inference that Mr Asad seeks to have drawn. There is no basis for there being any constructive knowledge imputed to the Assistant Minister from draft reasons that were before the Minister and not adopted at that time because the Minister decided to afford Mr Asad procedural fairness.

Proposed judicial review grounds

20    The proposed grounds for review, for which an extension of time is sought as addressed below, are contained in a draft third further amended originating application dated 1 June 2026, and filed by leave on 12 June 2026, which was not opposed upon the basis that they remained the subject of the extension of time application. That is the only sense in which they are ‘draft’ grounds. It suffices for present purposes to reproduce only the grounds themselves (and only part 1 of ground 1 given the remainder of that ground is not pressed), and not the detailed particulars that accompany them, as follows, and that each ground is relied upon to establish jurisdictional error:

GROUND 1: The Assistant Minister’s state of satisfaction that cancellation was in the national interest was formed in a way that was irrational, illogical and/or legally unreasonable.

GROUND 2: In deciding whether to exercise his discretion to cancel the Applicant’s visa, the Assistant Minister failed to reasonably consider the legal and practical consequences of his decision, or alternatively reasoned in a way that was irrational, illogical or unreasonable in respect of those consequences.

GROUND 3: The Assistant Minister’s decision is affected by jurisdictional error because he engaged in irrational or illogical reasoning in finding that there was no prospect of the Applicant being granted a relevant permission by a foreign country party to a third country reception arrangement as a direct or immediate consequence of his decision.

Application for extension of time

21    By way of his application dated 19 December 2025, Mr Asad applied for an extension of time under s 477A(2) of the Migration Act to review the impugned decision to cancel his resident return visa. Mr Asad says that it is in the interests of justice that the extension of time be granted because the delay is not lengthy, and the consequence if he were shut out of seeking review would be severe, namely his imminent removal to Nauru. Mr Asad contends his judicial review grounds are strong. In summary, having regard to the entirety of his oral and written submissions, Mr Asad contends the extension of time should be granted for the following reasons:

(a)    While there is a delay, it is not an exceptional one. Mr Asad explains the delay by the fact he was in the community at the time the impugned decision was made, and that he did not understand the impact of that decision, nor does he remember seeking advice about it. Mr Asad says he has memory problems. As a result of the impugned decision, Mr Asad was returned to immigration detention and after that point, presumably upon then understanding the impact of the impugned decision, sought legal advice promptly.

(b)    The consequences for Mr Asad in being refused an extension of time, and therefore denied an opportunity to review the impugned decision, are significant, and the nature of the consequences has changed since the impugned decision was first made. At the time it was made, Mr Asad held a five-year resident return visa and was living in the community. Now, he has been issued a long-term stay visa by the government of Nauru, which resulted in the cancellation of his Australian visa, and he faces imminent removal to Nauru.

(c)    The respondent faces no real prejudice by the extension being granted.

(d)    The grounds of review are strong.

22    The Assistant Minister submits that the application for an extension of time should be refused, in summary for the following reasons:

(a)    The period of delay is not satisfactorily explained by Mr Asad. Mr Asad’s poor memory and period of detention do not appear to have prevented him from obtaining legal assistance and, in any case, an absence of legal advice is not itself a satisfactory explanation for delay.

(b)    The consequence to Mr Asad of being denied an opportunity for review has not meaningfully changed, contrary to Mr Asad’s assertion, because it has always been the case than an unlawful non-citizen could be removed from Australia, and there was no statutory change during the period of delay.

(c)    The Minister is prejudiced by Mr Asad commencing the proceeding out of time, because the Minister has administered the Migration Act and taken steps under it, including issuing the BVR and taking steps towards removal, on the understanding that the impugned decision was valid and unchallenged.

(d)    The merits of Mr Asad’s proposed judicial review application do not support the grant of an extension of time.

23    In order to grant an extension of time pursuant to s 477A, the Court must be satisfied that extending the time is necessary in the interests of the administration of justice: CZA19 v Federal Court of Australia (2021) 285 FCR 447; 390 ALR 1; at [19]; WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 282 FCR 516; [2021] FCAFC 19 at [29]–[33]. Beyond that, there are no express mandatory considerations conferred by the statute, and the Court may have regard to various factors, including the length of the applicant’s delay, the reasons for the delay, any prejudice to the respondent, and the merits of the underlying application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [12]. The parties in the present proceeding have relevantly focussed on those considerations in their submissions, summarised above.

24    In Katoa, the High Court considered the discretionary power conferred by s 477A, observing (at [18]) that there will be circumstances which require a more than impressionistic assessment of the merits of the case to properly determine that component of the decision as to extension of time (footnotes omitted):

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

25    In his written submissions, Mr Asad submits that the factors relevant to the delay and the potential consequences for him are such that the dominant consideration in whether or not to grant the extension of time is the merit of the proposed grounds. I am satisfied that the other relevant factors (whether there is an exceptional explanation for the delay, the extent of the prejudice to the respondent, and the possible consequence to Mr Asad) are such that unless there is no merit to be found in the proposed ground of appeal, the interests of the administration of justice will be served by the extension being granted.

26    For the reasons that follow, I am satisfied that there is sufficient merit for the extension of time to be granted in relation to part 1 of proposed ground 1 (part 2 not being pressed), but insufficient merit for the extension of time to be granted in relation to proposed grounds 2 and 3.

Overview of the Assistant Minister’s decision to set aside the Tribunal’s decision and cancel Mr Asad’s visa

27    As set out above, on 20 September 2022 the delegate decided under s 501CA of the Migration Act not to revoke cancellation of Mr Asad’s visa. This decision was the subject of Mr Asad’s application for review made to the Tribunal, and the subsequent events chronologised at [7] to [18] above. The impugned decision the subject of this proceeding is that made by the Assistant Minister, in which he decided under s 501BA to set aside the Tribunal’s decision and to cancel Mr Asad’s resident return visa.

28    Pursuant to s 501BA of the Migration Act, the Minister or relevant decision maker acting with delegated authority, is empowered to set aside a decision made under s 501CA that reinstates a person’s visa and to cancel that visa, if they are satisfied that the person does not pass the character test and that the cancellation is in the national interest. ‘National interest’ is not defined for the purpose of that provision, but that concept has been addressed in several High Court decisions, as referred to below. In his reasons, the Assistant Minister considered that the ‘national interest’ includes matters such as protection of the Australian community, the prevention of family violence, and the expectations of the Australian community.

29    The Assistant Minister’s reasons for setting aside the Tribunal’s decision and instead cancelling Mr Asad’s resident return visa, after explaining some preliminary matters, addressed the national interest under the headings of “protection of the community” and “expectations of the community”, concluding that the use of his discretionary power to cancel that visa was in the national interest. The Assistant Minister was satisfied Mr Asad did not pass the character test (on the basis of ss 501(6)(a) and (7)(c)), and as such the bulk of his reasons focussed upon the national interest as a separate and distinct question for more detailed analysis (at [15]ff of his reasons).

30    The Assistant Minister then turned to address any relevant considerations that might support a decision not to exercise the power that was so enlivened, being the best interests of minor children involved, Mr Asad’s ties to Australia, the legal consequences of the decision, and the impediments that Mr Asad would face if he was removed to Iraq. The Assistant Minister also had regard to a number of additional matters, most notably traumatic experiences in Mr Asad’s past, which in turn had a bearing on his drug use and criminal offending. The Assistant Minister reached his conclusion by weighing up the conclusions reached as to the national interest and the other considerations relevant to the exercise of the discretion and decided to exercise the discretion to set aside the Tribunal’s decision and cancel Mr Asad’s resident return visa.

31    By ground 1, Mr Asad challenges a component of the protection of the community aspect of the national interest, namely the Assistant Minister’s assessment of the risk that he posed to the Australian community, given that, whatever the decision was on cancellation, he would remain in the community. He does not press his challenge to the Assistant Minister’s assessment of the expectations of the Australian community aspect of the national interest, such that an extension of time for that aspect is not required.

32    By grounds 2 and 3, Mr Asad challenges two aspects of the consideration of the exercise of the discretion, consequent upon the finding that cancellation of Mr Asad’s visa was in the national interest, as detailed below.

33    Ground 4 is not pressed such that an extension of time for that ground is not required.

Ground 1 – irrational, illogical and/or legally unreasonable formation of satisfaction that visa cancellation was in the national interest

34    As set out at [31] above, Mr Asad seeks to challenge a component of the protection of the community aspect of the national interest, namely the Assistant Minister’s assessment of the risk that he posed to the Australian community.

35    The argument advanced by Mr Asad at its core turns on him being in the community no matter whether his visa is cancelled or not, by reason of him being a member of the NZYQ cohort, for whom the High Court ruled that indefinite detention was constitutionally impermissible. At that time Mr Asad could not be returned to Iraq. It followed that if he was kept in immigration detention, he would have been there indefinitely, and therefore unlawfully. That was why he was released on a BVR after NZYQ was decided.

36    Mr Asad argues that there is no rational, logical, or legally reasonable difference between the risk that he poses by being in the community on his resident return visa and being in the community on a bridging visa, or indeed on any other kind of visa.

37    It is not in doubt, or apparently in dispute, that, as asserted by Mr Asad in the particulars to ground 1, that (adding the paragraph references to the Assistant Minister’s reasons):

The Assistant Minister assessed the risk to the community posed by the Applicant [D 41] – [D 49] and considered he had an ongoing risk of re-offending.

The Assistant Minister afforded the risk posed by the applicant to the community significant weigh in support of cancellation being in the national interest [at D 52].

The Assistant Minister also found that if cancellation decision was made under s 501BA(2) the Applicant would continue to remain in the community [D 87 and D 92].

The Minister had referred consideration of any decision to grant the Applicant a further visa to a delegate.

The Assistant Minister considered it would be ‘speculative’ to determine what form of visa the Applicant should reside on and the conditions to be imposed on that visa [at D 91]

In arriving at his ultimate conclusion on the national interest the Assistant Minister then found the risk to the community was unacceptable [at D 106].

38    However, the Assistant Minister disputes the next particular:

The Assistant Minister failed to explain or articulate a rational basis for how cancellation would protect the community in circumstances where he considered the cancellation of the Applicant’s visa would not lead to the Applicant being detained or removed from Australia, that consideration of what visa he could be granted would be ‘speculative’, and that the Applicant would continue to remain in the community indefinitely.

39    Mr Asad’s argument in chief was that the Assistant Minister’s reasoning that visa cancellation was necessary to protect the community from the unacceptable risk that he posed to the community gave rise to a “clear and significant logical gap” in reasoning, citing KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 at [70] and [73]-[74], upheld by the Full Court in rejecting the protection of the community aspect of ground 1 of the appeal from that decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ [2026] FCAFC 52 (Perry, Kennett and Shariff JJ): see [27] and also [41]-[49]. In KFTJ the Full Court found (affirming the decision of the primary judge in that case) that the Minister had erred in failing to explain why protection of the Australian community weighed in favour of cancelling the applicant’s visa, in circumstances where the applicant would remain in Australia indefinitely. The principle relied upon is not in doubt, but its application to this case turns of the characterisation and assessment of the Assistant Minister’s reasons in this case.

40    The gap is described in Mr Asad’s written submissions in chief as follows (omitting footnotes):

[35]    The reasoning is devoid of any explanation as to how cancellation of the Applicant’s visa would in fact protect the community, in circumstances where the Second Respondent had reasoned that as a result of the decision in NZYQ the Applicant would continue to reside in the community indefinitely, and his detention was not reasonably practicable.

[36]    That illogicality is reinforced by the great lengths taken by the Second Respondent to disavow any speculation as to which visa the Applicant would be placed on, and any conditions those visas may hold, including by referring any further decision on a BVR to a delegate.

[37]    The Court would be comfortably satisfied that in reaching his conclusion, the Second Respondent gave no intelligible justification within his reasons for his finding that the protection of the community weighed heavily in favour of cancellation, in circumstances where the Applicant would remain in the community. His decision would not fulfil or assist in fulfilling any purported need to protect the community, and his reasoning is silent on how it would fulfil that purported need.

41    The answer advanced by the Assistant Minister is that a distinction was drawn by him between Mr Asad being in the community permanently, as he would be if the cancellation of resident return visa remained revoked as the Tribunal decided, or impermanently if he was only on a non-permanent visa of some kind (declining to speculate what that visa might be and what conditions might be imposed). The difference relied upon by the Assistant Minister is between a permanent and therefore ongoing risk, albeit low, and a non-permanent, and therefore, potentially at some stage, non-ongoing risk. The difference is not only the word “permanent” but also what that means for whether or not the risk is, or is not, inherently ongoing. This is reflected in the following paragraphs of the Assistant Minister’s reasons (emphasis added):

(a)    At [49] under the subheading “Remorse and rehabilitation”, within the “Risk to the Australian community” consideration as to national interest:

Overall, for those reasons I consider that there is an ongoing risk that Mr ASAD will engage in further offending. In making that finding, I have given weight to the ongoing risk Mr ASAD would present to the Australian community if he were permitted to remain in Australia permanently.

(b)    At [52] under the subheading “Conclusion on risk to community” within the “Risk to the Australian community” consideration as to national interest:

On balance, I consider there to be an ongoing likelihood that Mr ASAD will reoffend and note that should he engage in similar conduct again, it would be likely to result in serious psychological and/or physical harm to members of the community. In making this finding, I have given weight to the ongoing risk Mr ASAD would present to the Australian community if he were permitted to remain in Australia permanently. In those circumstances, I consider that the risk is unacceptable. I have given this consideration significant weight in support of cancellation being in the national interest.

(c)    At [58] under the “Expectations of the Australian community” consideration as to national interest:

I have attributed significant weight to the Government’s views about the expectations of the community. I consider that the expectations of the Australian community, which include an expectation that non-citizens who commit serious breaches of the law should not be allowed to enter or remain in Australia permanently, weigh heavily towards a finding that it is in the national interest to set aside the AAT decision and cancel Mr ASAD’s visa.

(d)    At [60] under the “Conclusions on national interests considerations” heading:

In the specific case of Mr ASAD, which includes incidences of violent offending and family violence, I have considered the nature and seriousness of his conduct and have concluded that it was very serious. I have also considered the harm which would result if Mr ASAD reoffended, and the government's concerns in particular regarding family violence. I have also considered the likelihood of Mr ASAD reoffending and found that while there is a reduced risk of reoffending, that risk is not trivial or fanciful. I have given weight to the ongoing risk Mr ASAD would present to the Australian community if he were permitted to remain in Australia permanently. In those circumstances, I consider that the risk is unacceptable. I have also considered the expectations of the Australian community, which I find weigh in favour of cancellation of Mr ASAD's visa.

42    In his reply submissions, Mr Asad challenges the Assistant Minister’s reliance on the repeated use of the word “permanently”, contending that the reasons do not address how the community is in fact protected by his visa cancellation. In making that submission, he isolates that word from its context. He relies upon the Assistant Minister’s reasons for the conclusion reached on risk to the community as follows (repeating the reproduction of [52] to place it in context):

[50]    The safety of the Australian community is the highest priority of the Australian government, which is committed to protecting the community from harm resulting from criminal activity or other serious conduct by non-citizens.

[51]    I have found that the nature of Mr ASAD's conduct is very serious. I have further found that violent offending, incidents of family violence and breaches of road safety laws have the potential to cause serious physical and/or psychological injury to members of the Australian community, if repeated.

[52]    On balance, I consider there to be an ongoing likelihood that Mr ASAD will reoffend and note that should he engage in similar conduct again, it would be likely to result in serious psychological and/or physical harm to members of the community. In making this finding, I have given weight to the ongoing risk Mr ASAD would present to the Australian community if he were permitted to remain in Australia permanently. In those circumstances, I consider that the risk is unacceptable. I have given this consideration significant weight in support of cancellation being in the national interest.

43    Mr Asad submits that a sensible reading of the above reasons makes it clear that the Assistant Minister’s concerns were about the risk of potential physical or psychological harm to members of the community, and the ongoing likelihood of reoffending, giving this “significant weight in support of cancellation being in the national interest.” He asserts that what is absent from this reasoning is how the ongoing risk is in any way reduced if his visa is cancelled, noting that the “ongoing” risk continues because he will continue to reside in the community. He asserts that there is no intelligible basis for this reasoning.

44    Mr Asad further asserts that his argument is fortified by other parts of the reasons, in which the Assistant Minister characterises any prospect of his removal from Australia as speculative, and refers to it not being a consequence of the cancellation of his visa that he will again be subject to the conditions of his prior BVR.

45    I am unable to accept Mr Asad’s argument. It entails, in substance, an impermissible attempt at reading the reasons of the Assistant Minister with an eye keenly attuned to the perception of error, in particular by failing to have regard to the language that was used in both its immediate context and in the wider context of the rest of the reasons. This does not involve a reconstruction of the Assistant Minister’s reasons. Nor does it mean that a beneficial reading is necessary to give effect to the words used by the Assistant Minister: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The meaning of what the Assistant Minister was saying is able to be arrived at by properly reading and understanding what was being said in its immediate and overall context.

46    The circumstances created by NZYQ meant that Mr Asad was going to remain in the community on some kind of visa. It could not be ruled out that that would be for an indefinite period, but it was also possible that circumstances might change, which is what any bridging visa accommodates. The Minister had also concluded that there was an unacceptable risk that Mr Asad would reoffend, with the possible consequences identified in the concluding paragraphs reproduced above. The decision for the Assistant Minister was to assess which option carried less risk to the community. Accordingly, under a BVR, the identified risk might end, whereas under a substantive visa, the identified risk would not end.

47    It is plain that the Minister was fully aware that, if he exercised the power under s 501BA, Mr Asad was going to remain in the community for an as yet undetermined period and that he would do so without the same liberties that he would have as the holder of the permanent resident return visa, giving those circumstances relatively heavy weight against the exercise of the discretion to cancel that visa: see the Assistant Minister’s reasons at [87]-[92]. It follows that the Assistant Minister was fully aware that the effect of the decision to cancel or not cancel Mr Asad’s resident return visa was the difference between him being in the community permanently, and being in the community for an indefinite and as yet unknown period, but with no right to remain here permanently.

48    One dimension of risk posed by the applicant to the Australian community, which the Assistant Minister considered was not trivial or fanciful ([48]), was what might happen at any point of time when Mr Asad would be in the community (namely, the possibility that he would reoffend). In this regard, the Assistant Minister did not express any view of any differential risk arising from which visa Mr Asad held so long as he was in the community. Another dimension of the risk posed was the duration of the period of time for which he would remain in the community. While the possibility of that risk ending by Mr Asad being removed from Australia was characterised as speculative, that only serves to emphasise the difference in status between Mr Asad remaining in Australia permanently on a resident return visa; and him remaining in the community for a non-permanent, even if indefinite, period, on some kind of temporary, transitional, or other non-permanent visa. The Assistant Minister expressly dealt with that latter situation at [87]-[92], as noted in the preceding paragraph.

49    The former necessarily created a permanent risk, while the latter created a risk that had at least the potential or possibility to be non-permanent, even if of indefinite duration at the time the decision was made. The Assistant Minister clearly viewed risk in this way, informed by the duration of the risk, rather than only the content of that risk at a particular point in time when Mr Asad was in the community, as reflected by the clear, deliberate, and repeated use of the word “permanent” to describe that feature of the ongoing risk. As a result, there was present the minimum necessary intelligible basis for the decision by the Assistant Minister to cancel Mr Asad’s resident return visa by reference to the differential risk.

50    I am fortified in this conclusion by similar arguments to that made by Mr Asad having been made, and rejected, in recent decisions of this Court. Some of those authorities, and the relevant consideration of the grounds advanced therein, are conveniently summarised by O’Bryan J in KZS25 v Minister for Immigration and Citizenship [2026] FCA 949, which I consider helpful for present purposes to illustrate similar reasoning:

[40]    In XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539 (XKTK), the Full Court concluded that the Minister’s finding, that cancellation of the applicant’s visa would promote the protection of the Australian community, was not irrational even though the applicant would remain in Australia on a BVR. Wheelahan J observed (at [30]-[31]) that there were two features of a BVR that differed from the visa being cancelled: first, the BVR was susceptible to immediate cessation upon the Minister giving notice of his satisfaction that the appellant’s removal from Australia is reasonably practicable; second, the BVR was liable to be subject to conditions that included some that were specifically directed to the risk of reoffending. Given those differences, it was not irrational for the Minister to conclude that cancellation of the visa would promote the protection of the Australian community (at [51]). Stewart and Needham JJ similarly concluded that the Minister’s finding was rationally based having regard to the different characteristics of a BVR, specifically the imposition of conditions which would offer greater protection to the Australian community (at [84]). Referring to the recent judgment of the High Court in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378, their Honours observed that (at [113]):

… there was no illogicality or “inconsistency” in cancelling a visa that granted the non-citizen the right to remain in Australia in circumstances where the non-citizen will still remain in Australia but on a visa that is designed to facilitate their removal when practicable.

[41]    The Full Court reached the same conclusion in Minister for Immigration and Multicultural Affairs v SSVJ (2026) 315 FCR 435 (SSVJ), reasoning (at [28]-[29]):

28    The conclusion that protection of the community weighed “heavily in support of cancellation in this case in the national interest” must therefore be taken to have been reached in the light of what, as exposed in the Minister’s reasons as a whole, the Minister expected to be the consequences if the respondent’s visa was cancelled. Those consequences did not include detention and removal, at least in the foreseeable future. However, they did include … the grant of some other visa to the respondent which would be subject to conditions the subject of a future decision. That future decision would, obviously, take into account the respondent’s criminal record. The consequences also included … restrictions on the classes of visa for which the respondent could apply in the future.

29    Read as a whole, therefore, the Minister’s reasons reveal a rational foundation for the understanding … that cancelling the respondent’s visa would provide some protection for the community against further criminal conduct on his part.

51    It follows that ground 1 must fail. However, I am satisfied that the point, and therefore my conclusion, is sufficiently debateable that Mr Asad has made a strong enough case for an extension of time to bring this ground of review.

Ground 2 – in deciding whether to exercise the discretion to cancel Mr Asad’s visa, failing to consider reasonably the legal and practical consequences of that cancellation, or reasoning on that topic in a way that was irrational, illogical or unreasonable

52    Mr Asad relies in particular on particular (e) to this proposed ground:

The Assistant Minister failed to reasonably consider one or more of the direct legal or practical consequences, which were:

(i)    The immediate consequence that the Applicant would become an unlawful non-citizen unless and until he was granted a visa, and the consequences of becoming an unlawful non-citizen.

(ii)    The direct and/or practical consequence that the Applicant would inevitably be granted a Bridging R Visa (BVR) which would be subject to strict conditions, a breach of which could result in him being imprisoned.

53    Mr Asad’s written submissions in chief in support of this proposed ground are concise and therefore better reproduced than summarised (omitting footnotes):

[43]    While the Second Respondent did turn his mind to the consequences of his decision, his reasoning process and the conclusions he reached on those consequences was fundamentally unreasonable for the following reasons;

[44]    Firstly, he failed to consider the obvious consequence of his decision, which would be that the Applicant would become an unlawful non-citizen.

[45]    Secondly, the Second Respondent disavowed any consideration of “the type” of visa the Applicant be subject to, and any potential conditions which may be imposed depending on that visa, such that he also failed to consider that the inevitable consequence of the cancellation would be that the Applicant would inevitably be placed on a BVR with highly restrictive conditions. This was inevitable because:

a.    The Applicant had previously been granted a BVR following the NZYQ decision.

b.    Public statements from the First Respondent had made clear that members of the NZYQ cohort would be placed on BVR’s.

c.    The federal government had passed the Migration Amendment (Bridging Visa Conditions) Bill 2023, which introduced strict requirements for BVR holders, ostensibly for the NZYQ cohort. The Explanatory Memorandum provides that “The Department of Home Affairs (The Department) may use a BVR where a non-citizen in the NZYQ affected cohort has no entitlement to remain in Australia and is unlikely to qualify for any other visa.”

d.    The First Respondent had ticked the option for his delegate to consider whether the Applicant should be granted a further BVR.

54    In his reply submissions, Mr Asad developed (and perhaps somewhat changed) his argument as follows:

[13]    It is not in dispute the Second Respondent gave at least some consideration to the direct and immediate legal and practical consequences of his decision.17 The question here turns on whether that consideration was irrational, illogical or unreasonable. This ground is made good on three essential propositions:

a.    First, the Second Respondent directed no reasoning towards the most salient direct and practical consequence; the consequence of becoming an unlawful non-citizen, which would also include that the Applicant no longer has the right to work.

b.    Second, the Second Respondent’s assertion that he would separately consider the type of visa on which the applicant would reside on was simply wrong, noting that he had already asserted in his ministerial submission he would refer this to a delegate.

c.    Third, it was ultimately inevitable that he would be granted a BVR. That inevitably is never acknowledged in any cogent way.

55    None of these arguments are tenable on the face of the Assistant Minister’s reasons, for the following reasons:

(a)    The Assistant Minister was plainly aware that if Mr Asad’s resident return visa was cancelled, he would become an unlawful non-citizen unless and until he was granted another visa. That much is plain in the Assistant Minister’s reasons at [84] which refers to the effect of NZYQ, being that detention of a non-citizen will not be supported by ss 189 and 196 of the Migration Act and must be released, having already referred to Mr Asad being released following judgment in NZYQ. At [87], the Assistant Minister’s reasons record his awareness that if the cancellation decision is made, Mr Asad will not be taken into custody, but will reside in the community and a Minister or delegate will separately consider the type of visa and any conditions to be imposed.

(b)    It is incorrect to contend that the grant of a BVR was inevitable, because, as the Assistant Minister noted at [88], if the cancellation decision was made, Mr Asad would not be able to apply for any visa other than a protection visa or a BVR, declining to speculate as to whether any application would be made for a protection visa. That is so even if a BVR was more likely than a protection visa. It was therefore apparently at least possible at the time of the decision that Mr Asad would apply for a protection visa, which denies the absolute inevitability of him being granted a BVR that he relies upon in support of that contention. This also takes care of the incorrect assertion reproduced above that the Assistant Minister was wrong to assert at [91] that he or his delegate may separately consider the type of visa upon which Mr Asad should reside and conditions to be imposed. It is not to the point that one of those possibilities was advanced by the Assistant Minister referring the question of the grant of a BVR to a delegate on the front page of the submission to him, which also records the signing of the draft statement of reasons, because that does not deny the possibility of the alternative of the application for a protection visa, an option that has not been challenged.

(c)    As to the Assistant Minister not being aware of Mr Asad losing the right to work if he ended up being on a BVR, the reasons at [92] record the conclusion that, in the event of cancelling Mr Asad’s visa, he would “likely remain in the Australian community, albeit without the same liberties” that he had as the holder of the resident return visa. It is plainly not legally unreasonable, illogical, or irrational not to spell out, letter and verse, what the liberties no longer available would be, including the right to work.

56    It follows that this proposed ground was doomed to fail, and as such an extension of time to rely upon it should not be granted by reason of failing to surmount the criterion of having at least a reasonably arguable case.

Ground 3 – irrational or illogical reasoning in finding that there was no prospect, as a direct or immediate consequence of the cancellation decision, of Mr Asad being granted a relevant permission by a foreign country party to a third country reception arrangement.

57    Mr Asad seeks to challenge the Assistant Minister’s reasoning that neither detention nor removal to a third country would be a direct or immediate consequence of a decision to cancel his resident return visa as entailing either a failure to reasonably consider that consequence, or reasoning upon that consequence in a way that was irrational, illogical, or (legally) unreasonable. Some of the particulars relied upon are the same as that which have been shown to be wrong in considering proposed ground 2, and do not need to revisited. The same is true of the reliance placed on the earlier draft reasons that were not adopted by the then Minister, let alone by the Assistant Minister.

58    What remains is the impact of the evidence of the third country reception arrangement that was being negotiated with the Republic of Nauru in the period between the process being initiated on 31 January 2025, and the continuation of those negotiations at the time the impugned decision of the Assistant Minister was made on 7 May 2025. Mr Asad relies upon those circumstances to seek to impugn the following reasons of the Assistant Minister (emphasis added):

[85]    Since the protection finding made for Mr ASAD means that his removal to Iraq is not required or authorised, he could only be removed to a third country. As there is presently no prospect of this, he would not be subject to ongoing detention pending his removal.

[86]    Since the protection finding made for Mr ASAD means that his removal to Iraq is not required or authorised, he could only be removed to a third country. As there is presently no prospect of this, he would not be subject to ongoing detention pending his removal.

59    Mr Asad contends that at the time the impugned decision was made on 7 May 2025, there was a further agreement being negotiated between the respective governments that, if fruitful, would facilitate more than three of the NZYQ cohort to be resettled in Nauru, so as to include him. Mr Asad said that because of the ongoing negotiations and interim arrangements, the Assistant Minister either was, or should have been, aware that there was a possibility that Mr Asad would or could be resettled in Nauru under that tentative, future agreement, if the negotiations ultimately resulted in formalisation. This argument was advanced to demonstrate that, in relation to ground 3, the Assistant Minister’s impugned reasons were irrational or illogical because of the conclusion that there were no prospects for Mr Asad to be resettled to a third country. According to Mr Asad, it was not accurate to reach that conclusion, when the Assistant Minister had constructive knowledge of the ongoing negotiations and therefore the possibility that a further agreement would be made in respect of the NZYQ cohort that could encompass Mr Asad as a relevant participant.

60    Mr Asad’s argument cannot be accepted. Treating an agreement under negotiation as a concluded agreement is akin to treating a Bill before parliament as though it has been enacted as statute. It is not necessary to delve any further into the dispute as to who the proposal, which was the subject of continuing negotiations, might, if made the subject of a concluded agreement, have applied to. The insurmountable problem for Mr Asad is that as at the time of the impugned decision to cancel his resident return visa, there was no agreement in place by which he could be resettled in Nauru. Unless and until such an agreement came into force, it was reasonably open to the Assistant Minister to conclude that presently – that is, at the time of the decision on 7 May 2025 – there was no prospect of that happening and that Mr Asad would therefore be subject to ongoing detention in Australia. The use of the word “presently” is an important temporal qualifier to the Assistant Minister’s impugned reasons, reflecting the absence of any agreement being in place with Nauru. It is impossible in those circumstances to characterise this aspect of the Assistant Minister’s reasons as irrational, illogical, or otherwise legally unreasonable.

61    It follows that this proposed ground was also doomed to fail, and as such an extension of time to rely upon it should not be granted by reason of failing to surmount the criterion of having at least a reasonably arguable case.

Conclusion

62    An extension of time is granted in relation to the first aspect of proposed ground 1. But that part of that ground must fail.

63    No extension of time is granted on the remaining grounds sought to be relied upon, namely proposed grounds 2 and 3.

64    The third further amended originating application dated 1 June 2026 and filed by leave on 12 June 2026, confined as it is to the first aspect of ground 1, is dismissed with costs.

Associate:

Dated:    9 October 2026