Federal Court of Australia

Mohamedali v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1531

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time for the filing of an originating application to seek review of the decision made by the respondent on 23 December 2025 be extended to 29 July 2026.

2.    The application is allowed.

3.    A writ of certiorari directed to the respondent issue, quashing the decision made on 23 December 2025 to set aside the decision of the Administrative Review Tribunal made on 15 July 2025 and cancel the applicant’s visa under s 501BA of the Migration Act.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    On 23 December 2025 the Assistant Minister made a decision under s 501BA of the Migration Act 1958 (Cth), setting aside a decision of the Administrative Review Tribunal made 15 July 2025 to reinstate the applicant’s Refugee and Humanitarian (Global Special Humanitarian) Class XB Subclass 202 visa, and cancelling the visa.

2    Pursuant to s 501BA, the Minister may override the Tribunal’s decision relevantly if the Minister is satisfied that cancellation of a visa is in the national interest. The Assistant Minister is to be regarded as the Minister for that purpose: Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391; and Maxwell v Minister for Immigration & Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [19]-[21] (Perry J).

3    The exercise of the s 501BA power is conditioned by a requirement it be exercised reasonably: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at [140]; Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270 at [20] and [86].

4    The applicant has sought judicial review of the Assistant Minister’s decision pursuant to the original jurisdiction conferred on this Court by s 476A(1)(c) of the Migration Act.

5    As part of his reasoning, the Assistant Minister addressed the risk the applicant posed to the Australian community at the time of his decision. The Assistant Minister accepts that in doing so, he failed to have regard to an updated report of a registered psychologist dated 27 May 2025 which was constructively before him. The report addressed matters such as the applicant’s remorse and the steps he had taken to address his substance use.

6    The Assistant Minister accepts that such matters are relevant to the applicant’s risk of reoffending and the protection of the Australian community, and that such matters were identified as relevant to his assessment of whether cancellation of the applicant’s visa was in the national interest.

7    Accordingly, the Assistant Minister accepts that his decision was affected by jurisdictional error as a result of his failure to properly consider the risk the applicant posed to the Australian community.

8    The applicant and the Assistant Minister consent to orders being made allowing the applicant an extension of time for filing his review application and allowing the review application. They propose that by consent a writ of certiorari directed to the respondent issue, quashing the decision made on 23 December 2025 to set aside the decision of the Administrative Review Tribunal made on 15 July 2025 and to cancel the applicant’s visa under s 501BA of the Migration Act.

9    I am therefore asked to make the orders sought by the parties by consent. Within the public law jurisdiction of the Court, it is appropriate that the Court specify the error and record its satisfaction that an error has occurred which justifies the proposed relief being granted: see generally (and acknowledging the issue arises in different contexts): Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17; Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323; VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921.

10    I accept that the concession as to jurisdictional error is properly made by the Assistant Minister and that it is appropriate to make the orders sought jointly by the parties.

Associate:

Dated:    15 October 2026