Federal Court of Australia

Fred-Tutavaha v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1586

ORDERS

THE COURT ORDERS THAT:

1.    Grounds 2 and 3 of the originating application dated 11 August 2025, and proposed ground 4 identified in the reasons for judgment, are rejected.

2.    The consideration of ground 1 of the originating application is deferred until after the High Court has handed down its decision in XMBQ v Minister for Immigration and Citizenship (M86/2026).

3.    Costs are reserved.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an application for judicial review of a decision made by the Respondent (the Assistant Minister) under s 501BA of the Migration Act 1958 (Cth), which set aside a decision of the former Administrative Appeals Tribunal and cancelled the Applicant’s visa.

2    The application raises three broad issues:

    Whether to defer consideration of the Applicant’s first argument (that the Assistant Minister’s decision was not made within a reasonable time after the Tribunal’s decision) until after the High Court has determined an appeal raising the same issue;

    Whether the Assistant Minister’s consideration of the legal consequences of the decision contains jurisdictional error, either because the Assistant Minister failed to appreciate that immigration detention was a legal consequence; or because it was legally unreasonable in the circumstances to give legal consequences “neutral weight”;

    Whether the Assistant Minister’s assessment that cancellation of the Applicant’s visa was in the national interest was legally unreasonable.

3    The second and third issues are decided against the Applicant. However, I have decided to defer consideration of the Applicant’s reasonable time argument until the High Court has handed down its decision.

background

4    Arrival in Australia (1996): The Applicant was born in New Zealand, and he first arrived in Australia in March 1996 when he was four years old. He was granted a Class TY Subclass 444 Special Category (Temporary) visa on 21 July 2011, and again on 22 January 2019.

5    Applicant sentenced to 3 years for attempted armed robbery (Oct 2016): On 18 October 2016, the Applicant was convicted of attempted armed robbery in the District Court of Queensland, and sentenced to three years’ imprisonment.

6    Mandatory cancellation of visa revoked (Apr 2018, Jan 2019): On 23 April 2018, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act, by reason of the 2016 conviction. On 22 January 2019, a delegate of the Assistant Minister decided to revoke the cancellation of the Applicant’s visa, under s 501CA(4) of the Migration Act.

7    Applicant sentenced to 18 months for dangerous driving (Aug 2022): On 26 August 2022, the Applicant was convicted in the Magistrates Court of dangerous interference with the operation of a vehicle, for which he was sentenced to 18 months’ imprisonment. This offending involved dangerous driving in a stolen vehicle, including driving at the police.

8    Second mandatory cancellation of visa (Dec 2022): On 16 December 2022, the Applicant’s visa was again cancelled under s 501(3A), by reason of the 2022 conviction. The Applicant sought revocation of that decision.

9    Delegate decides not to revoke cancellation (Sep 2023): On 7 September 2023, a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa. The Applicant applied to the Tribunal for merits review of that decision.

10    AAT revokes visa cancellation (Nov 2023): On 30 November 2023, the Tribunal set aside the delegate’s decision, and revoked the cancellation of the Applicant’s visa.

11    Conviction and suspended sentence (Nov 2024): On 8 November 2024, the Applicant was convicted in the Magistrates Court of several offences, including receiving tainted property (in February 2024), and sentenced to six months’ imprisonment, to be suspended for 12 months.

12    Notice of intent to cancel visa (Sep 2024, Feb 2025): On 16 September 2024 and again on 18 February 2025, the Applicant was notified that a Minister was considering setting aside the Tribunal’s decision and cancelling the Applicant’s visa under s 501BA of the Migration Act. The Applicant was invited to comment.

13    Assistant Minister’s s 501BA decision (Jun 2025): On 6 June 2025, the Assistant Minister decided to set aside the Tribunal’s decision and cancel the Applicant’s visa, under s 501BA of the Migration Act. The Applicant was notified of this decision on 8 July 2025.

14    Two aspects of the decision are relevant to this proceeding.

15    National interest considerations: The first relevant aspect is the Assistant Minister’s reasons for finding that the cancellation of the Applicant’s visa was in the national interest.

16    The Assistant Minister stated that, in determining whether it was in the national interest to cancel the Applicant’s visa, he gave “the highest priority to the safety of the Australian community and the need to protect the Australian community”. In doing so, he considered the seriousness of the Applicant’s criminal conduct (having regard to the circumstances and nature of the conduct and the likelihood of him reoffending or engaging in other serious conduct), and the risk that the Applicant posed to the Australian community if that likelihood eventuated (Statement of Reasons [20]).

    On seriousness of criminal conduct, the Assistant Minister was of the view that offences which involve violence, the dangerous operation of a vehicle and obstruction of police officers in the course of their duties should be viewed very seriously. The various sentences of imprisonment that the Applicant had received were a further indication of the seriousness of his offending (Reasons [38]). The Assistant Minister was concerned that the Applicant’s history of offending included frequent, recidivist offending despite the imposition of terms of imprisonment. The Assistant Minister considered that the Applicant’s offending had put the lives of police officers, pedestrians and other road users at a real risk of significant harm (Reasons [39]). Although the Applicant had not committed any actual violence, he had placed members of the public and the police in danger and fear during the course of his offending. The Assistant Minister considered that, overall, the Applicant’s history of criminal conduct was very serious (Reasons [40]).

    On risk to the Australian community, the Assistant Minister considered that, having regard to the Applicant’s offending history, any future offending of a similar nature or seriousness would have the potential to cause serious physical, psychological and/or financial harm to members of the Australian community (Reasons [41]). The Assistant Minister accepted that the Applicant’s substance abuse and mental health issues had been significant contributing factors to his offending (Reasons [45]). The Assistant Minister made findings about the Applicant’s attempts at rehabilitation at Reasons [48]-[51] (considered further at [60]-[61] below). The Assistant Minister accepted that the Applicant had shown genuine remorse for his offending and had taken steps to address the underlying factors that contributed to his offending, but was “not convinced that [the Applicant had] rehabilitated to the point where the likelihood of him engaging in illicit drug use or other criminal conduct [was] negligible” (Reasons [51]). After summarising his findings on risk to the community, the Assistant Minister concluded (Reasons [56]):

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

17    The Assistant Minister also attributed “significant weight” to the expectations of the Australian community towards a finding that it was in the national interest to cancel the Applicant’s visa (Reasons [60]). The Assistant Minister stated that these expectations of the community apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (Reasons [59]).

18    The Assistant Minister summarised his reasons for concluding that cancelling the Applicant’s visa was in the national interest as follows (Reasons [62]):

[The Applicant’s] criminal conduct has included, relevantly and amongst other things, acts of violence against government officials (police officers) in the performance of their duties and attempted armed robbery. I have identified the protection of the Australian community, nature and seriousness of his offences, and his extensive criminal history as very serious. I have also placed significant weight on my finding that [the Applicant] is an ongoing risk of reoffending, as well as my finding that it is the expectation of the Australian community that a non-citizen in [the Applicant]’s position should not hold a visa.

19    Having reached this conclusion, the Assistant Minister went on to consider whether there were relevant considerations that might support a decision not to set aside the decision of the Tribunal and cancel the Applicant’s visa, even though the Assistant Minister was satisfied that the Applicant did not pass the character test and even though the Assistant Minister was also satisfied that it was in the national interest to cancel the visa (Reasons [64]).

20    Legal consequences of decision: One of those considerations was the legal consequences of the Minister’s decision. This is the second aspect of the Reasons relevant to this proceeding. The Assistant Minister stated (Reasons [98]):

[The Applicant] has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor does the other available material indicate that such an assessment is necessary in this case. Further, he is not covered by a protection finding as defined in s197C of the Act. I find this to be a neutral consideration.

21    Application for judicial review (Aug 2025): On 11 August 2025, the Applicant lodged an application for judicial review of the Minister’s decision. This application contains three grounds (omitting particulars):

1.     The Assistant Minister did not have the power to make the decision because the decision was not made within a reasonable time.

2.    The Assistant Minister erred jurisdictionally by failing to consider, in the legally required sense, one legal consequence of the decision, namely, that the Applicant would be detained in immigration detention after a period of liberty in the community.

3.    The Assistant Minister erred jurisdictionally by giving the legal consequences of his decision neutral weight.

22    Initially, the Applicant was legally represented; however, his lawyers ceased to act for him in June 2026. He has not filed any written submissions. The Court arranged for counsel to provide pro bono assistance to the Applicant. Due to difficulties with being able to obtain instructions from the Applicant, counsel agreed to appear as amicus curiae, and has made written and oral submissions in support of the application. Those submissions were of considerable assistance.

analysis

Migration Act s 501BA

23    The Assistant Minister’s decision was made under s 501BA of the Migration Act. At the time, s 501BA applied if a delegate of the Minister, or the Tribunal, made a decision under s 501CA (the “original decision”) to revoke a decision under s 501(3A) to cancel a visa that had been granted to a person (s 501BA(1)).

    The reference to the “Minister” includes the Assistant Minister: see Acts Interpretation Act 1901 (Cth) s 19(1) item 1.

    The reference to the Tribunal has since been amended to refer to the Administrative Review Tribunal.

24    If s 501BA applied, then by s 501BA(2) the Minister “may set aside the original decision and cancel a visa that has been granted to the person” if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a) [substantial criminal record], on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e) [sexual offences involving a child]; and

(b)    the Minister is satisfied that the cancellation is in the national interest.

25    The rules of natural justice did not apply to a decision made under s 501BA(2) (s 501BA(3)). The power could only be exercised by the Minister personally (s 501BA(4)). The Minister’s decision was not subject to merits review (s 501BA(5)).

26    In this case, the Assistant Minister concluded that the Applicant does not pass the character test, by reason of his 2022 convictions (Reasons [13]-[15]; see s 501BA(2)(a)). That finding is plainly correct. The issue is the Assistant Minister’s findings as to the national interest (see s 501BA(2)(b)).

Ground 1: Whether decision was not made within a reasonable time

27    Ground 1 contends that the Assistant Minister’s decision is invalid because it was not made within a reasonable time after the Tribunal’s decision. The Tribunal’s decision was made on 30 November 2023, and the Assistant Minister’s decision was made on 6 June 2025 (around 18 months after the Tribunal’s decision).

28    Argument precluded by XMBQ (Full Court): It is common ground that Ground 1 is precluded by Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19; (2026) 315 FCR 207, where the Full Court held that s 501BA is not subject to any implied requirement that the power be exercised within a reasonable time. I note that, by agreement, this proceeding was held in abeyance until after the Full Court’s decision in XMBQ was handed down.

29    Effect of grant of special leave from XMBQ: The High Court has granted special leave to appeal from XMBQ (and from another Full Court decision raising the same issue). I am informed that the appeal will be heard in December 2026. The only matter in dispute is what the grant of special leave means for this proceeding.

    The amicus submits that I should stay determining this ground until the High Court appeal is heard and determined, citing Garratt v Assistant Minister for Immigration and Multicultural Affairs [2026] FCA 1340 at [10] (Sarah Derrington J).

    The Assistant Minister, on the other hand, contends that the grant of special leave does not affect the effect of XMBQ, and that I should apply the law as it currently stands, citing Mukhtar v Minister for Immigration and Citizenship [2026] FCA 1337 at [94] (Cheeseman J). At the hearing, that position was refined to the Assistant Minister neither consenting nor opposing the course of deferring ground 1.

30    Garratt cf Mukhtar: In Garratt, the applicant accepted that his ground 1 was contrary to XMBQ, but applied to stay the determination of that ground, because the High Court had by then granted special leave to appeal from XMBQ. Sarah Derrington J held that, in the circumstance that the applicant’s other ground (about legal unreasonableness) could not succeed, he should be granted the stay: Garratt at [10]-[11]. I note that the Minister’s decision in that case was made in May 2025 and the Tribunal’s decision was made in December 2022 (see Garratt at [6]-[8]), a period of almost two and a half years.

31    In Mukhtar, the applicant in that case also accepted that ground 4 was contrary to XMBQ, but pressed this ground and requested that the Court make a finding of fact that the decision was not made within a reasonable time. Cheeseman J declined to make the findings of fact sought.

(a)    First, her Honour stated that the grant of special leave does not affect the binding force of the Full Court’s decision in XMBQ, and that she was bound to apply that decision: Mukhtar at [94]. Accordingly, the factual issue was hypothetical, on the law as it stood then: Mukhtar at [96].

(b)    Second, Cheeseman J stated that declining to make the factual finding would not deprive the applicant of an effective opportunity to pursue this argument, because (Mukhtar at [99]):

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.

The Minister’s decision in Mukhtar was made approximately 14 and a half months after the Tribunal’s decision: Mukhtar at [92].

32    What is in the interests of justice? The approach suggested by the amicus is equivalent to adjourning this part of the proceeding. I therefore apply the same approach as for an adjournment application, by considering the interests of the parties (and the extent of prejudice to each of adjourning or not adjourning), and the impact of an adjournment on the administration of justice more broadly.

33    In Assistant Minister for Immigration v Hood (Adjournment) [2026] FCAFC 98; (2026) 317 FCR 178, the Full Court vacated the listing of the appeal raising the XMBQ issue until after the special leave application in XMBQ had been determined and, if special leave was granted, until after the hearing and determination of the appeal. The Assistant Minister’s grounds of appeal raised two issues: first, whether s 501BA was subject to any implied limit that the power be exercised within a reasonable time (ground 1); and second, if so, whether the Assistant Minister’s decision had in fact been made within a reasonable time (ground 2): Hood at [4].

    The Full Court stated that there was no general rule as to whether an application for special leave was reason to adjourn a pending hearing, and each case turns on its facts. Relevant factors were likely to include: the extent to which the outcome of the special leave application was likely to affect the outcome of the hearing; the nature of the hearing or trial that was the subject of the adjournment application; and the extent of prejudice to the parties in either granting or refusing the adjournment: Hood at [9].

    In Hood, the outcome of the special leave application in XMBQ concerned the very point which was ground 1 in the Assistant Minister’s appeal. The Full Court in Hood was not likely to depart from XMBQ. Mr Hood would only have “limited recourse” if the Full Court found against him, but subsequently the High Court allowed an appeal from XMBQ. That was a form of prejudice: Hood at [10]. Conversely, the Assistant Minister would not suffer any material prejudice from the adjournment. The appeal in Hood was listed for one day (unlike City of Sydney Council v Satara [2007] NSWCA 148, where a party applied to adjourn a three-week trial): Hood at [12].

    The Full Court rejected the Assistant Minister’s proposal that the Full Court could hear the appeal, but reserve its judgment until the special leave application had been determined: if the special leave application were dismissed, then the Full Court would have wasted time hearing argument on the Minister’s second ground of appeal and the notice of contention. But if special leave were granted, then the Full Court would likely need to reserve judgment until after the High Court appeal had been heard and determined. Both courses would involve an inefficient use of the Court’s resources: Hood at [13], [14].

34    In Mukhtar, Cheeseman J was not asked to stay the determination of the XMBQ issue, but the two points her Honour makes are nonetheless relevant. A party who is unsuccessful on the XMBQ argument at first instance can still appeal as of right to the Full Court, if the High Court were to decide that s 501BA in fact is subject to an implied time limit. Accordingly, the level of prejudice to the non-citizen of not deferring consideration is less than in Hood, where Mr Hood would be required to seek special leave to appeal to the High Court, with all the attendant uncertainties. Conversely, it is relevant whether the application would be successful or not, apart from the XMBQ argument (as in Garratt): there is less need to defer dealing with an XMBQ argument if the applicant will succeed on another ground, because the impugned decision will be remitted for reconsideration in any event. For example, in Da Silva v Minister for Immigration and Citizenship [2026] FCA 1277, Thawley J dealt with and rejected an XMBQ argument (even though the High Court had by then granted special leave), but found for the applicant in that case on another ground. Here, as discussed below, I have not accepted the Applicant’s other grounds.

35    Hood at [9] indicates that the Court may consider the prospects of special leave being granted. By parity of reasoning, it may be relevant in assessing the potential prejudice of refusing an adjournment to consider at an impressionistic level the likely success on the XMBQ ground, if the High Court were to allow the appeal and find that s 501BA is subject to an implied time limit. This exercise must be undertaken with some caution, because it is difficult to assess prospects in advance of knowing the High Court’s reasons for judgment. Here, the period of delay is around 18 months, and part of that period was taken in the Department inviting comment from the Applicant. That compares with a period of almost two and a half years in Garratt (noting that the Department in that case also invited comment from the applicant: Garratt at [7]). But, as the amicus submits, the XMBQ argument is open in this case.

36    In this case, the key factor in assessing the interests of justice is the impact on the Applicant, who is in immigration detention. He stated at the hearing that his preference would be to await the High Court’s decision in the appeal from XMBQ. As the amicus points out, he is legally unrepresented, so determining the ground now would leave him in the position of having to file a notice of appeal from immigration detention. The Assistant Minister does not claim any prejudice in deferring consideration of this ground. For these reasons, I will defer consideration of ground 1 until the High Court has handed down judgment in the appeal from XMBQ.

Grounds 2-3: Assessment of the legal consequences of the Assistant Minister’s decision

37    Grounds 2 and 3 challenge the Assistant Minister’s assessment of the legal consequences of the decision. Underlying these grounds are two key points:

(a)    First, it is said that the Assistant Minister did not appreciate that a direct legal consequence of the s 501BA decision would be that the Applicant would be taken into immigration detention; and

(b)    Second, it is said to be legally unreasonable for the Assistant Minister to give the legal consequences of the decision “neutral weight”, when being taken into immigration detention after 18 months of living in the community is “especially cruel” (citing Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266 at [92] (McDonald J)).

38    Did the Assistant Minister appreciate that detention was a legal consequence? The first issue is whether the Assistant Minister appreciated that a legal consequence of the s 501BA decision was that the Applicant would be taken into immigration detention. There is no mention of immigration detention in the discussion of “Legal consequences of the decision” in Reasons [98] (set out in [20] above).

39    Two points must be accepted in the Applicant’s favour: first, that the Assistant Minister was required to understand correctly the legal consequences of the s 501BA decision; and second, that a direct legal consequence of the s 501BA decision was that the Applicant would be taken into immigration detention, pending removal from Australia. The usual requirement that a decision-maker must consider the legal consequences of a decision applies equally to s 501BA: Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130 at [64]-[65] (the Court), and the cases cited.

40    It does not follow, however, that the proper inference is that the Assistant Minister failed to appreciate that a legal consequence of his decision was that the Applicant would be taken into immigration detention. The statement of reasons must be read fairly and as a whole, and the fact that a matter is not mentioned expressly does not necessarily mean it was not considered: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Kerr v Minister for Immigration and Citizenship [2026] FCA 726 at [38] (Collier J); Kim v Minister for Immigration and Citizenship [2026] FCA 1243 at [35] (Hespe J).

41    The issue then becomes the proper interpretation of the Assistant Minister’s reasons. In Kerr and Kim, the Minister’s reasons did not refer to immigration detention expressly as a consequence of the cancellation under s 501BA. The Court held, however, that this failure to refer expressly to immigration detention as a consequence did not give rise to an inference that this matter had not been considered: Kerr at [39]-[40]; Kim at [41]-[43]. The same is true here.

    In this case, the Assistant Minister was plainly aware that a legal consequence of the s 501BA decision was that the Applicant’s visa would be cancelled and he would be removed to New Zealand. The fact of cancellation appears on the face of the decision record, and the removal to New Zealand is discussed in multiple places in the Reasons, including in considering impediments if removed to New Zealand (Reasons [99]-[106]). There is no suggestion that removal would be voluntary, so a period of immigration detention pending removal is necessarily implicit in what appears in the Reasons. It is also relevant that the briefing to the Assistant Minister (which was signed by him) identified that a decision under s 501BA would result in the Applicant becoming an unlawful non-citizen and liable for immigration detention under the Migration Act: see Kerr at [39].

    Further, nothing in the Applicant’s circumstances raised any difficulty about removal, so the required period of immigration detention pending removal “as soon as reasonably practicable” under s 198 was an obvious and well-known statutory consequence: Kerr at [40]. This is not a case where there was some barrier to removal that might lead to an extended and uncertain period in detention, as might occur if removal to the person’s country of origin is not reasonably practicable because Australia owes non-refoulement obligations in respect of the person: see Kerr at [41]; Kim at [41]; see also Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411 at [42] (Banks-Smith J), considering a decision of the Administrative Review Tribunal. In those cases, it may well be necessary to give express consideration to the legal consequence of extended periods of immigration detention.

42    I am informed that both Kerr and Kim have been appealed to a Full Court. However, I consider both decisions to be correct (with respect), and will apply the law as it currently stands. Since the hearing, Banks-Smith J rejected a very similar argument, largely for the same reasons, in Fotu v Minister for Immigration and Citizenship [2026] FCA 1589 at [111]-[116].

43    It is true that the period of immigration detention is already significant in this case, and deferring ground 1 will extend it even further. However, that extension to the period of immigration detention is the result of the Applicant bringing these proceedings to challenge the validity of the s 501BA decision. He is of course entitled to bring these proceedings, but the resulting extension of the period of immigration detention is directly a consequence of that choice by the Applicant, rather than the Assistant Minister’s decision. The amicus submits in response that a non-citizen has a statutory right to bring judicial review proceedings, and therefore (it is said) a decision-maker must also take account of the period of immigration detention that a person will spend while judicial review (or merits review, if applicable) proceedings are finalised. Even if this additional period of immigration detention for judicial or merits review is properly seen as a consequence of the cancellation decision, it does not follow that there is a need to refer to immigration detention expressly in the reasons for cancellation. In Kim at [41], Hespe J stated that there was nothing in that case “to suggest that immigration detention would extend beyond resolution of the review (or possibly any related judicial review or appeals)” (emphasis added). This period of immigration detention does not take the Applicant’s case beyond consequences that are obvious and well-known: see Kerr at [40].

44    The Applicant also contends that the fact that the Assistant Minister gave legal consequences “neutral weight” shows that the consequence of immigration detention could not have been considered. That argument is considered next under the rubric of whether it was legally unreasonable for the Assistant Minister to give legal consequences neutral weight in this case.

45    Legally unreasonable to give consequences neutral weight? The second issue is whether the Assistant Minister’s conclusion that legal consequences were given “neutral weight” was legally unreasonable, given that a necessary consequence of the s 501BA decision was that the Applicant would be taken into immigration detention, pending removal.

46    It must be accepted in the Applicant’s favour that it is a very serious matter to be deprived of one’s liberty. And in the case of s 501BA, a non-citizen is deprived of their liberty after the Tribunal has re-instated their visa. In Morgan at [92], McDonald J commented:

The re-cancellation of a non-citizen’s visa in the exercise of the s 501BA power may seem especially cruel to a person who has lived successfully in the community for a significant period after being released from prison and immigration detention, has re-established relationships, and has taken positive steps to avoid further offending.

These remarks do not apply directly to this case, because the Applicant reoffended after his visa was re-instated by the Tribunal, but the point remains that detention following a cancellation under s 501BA generally occurs after a period in the community, as here.

47    On the other hand, legal unreasonableness is a demanding standard, to ensure that courts do not trespass on the merits of administrative decision-making. For that reason, the weight to be given to a consideration is generally a matter for the decision-maker. Further, although an assessment of legal unreasonableness might involve some consideration of disproportionality, that does not permit the Court to “decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable”: Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6; (2026) 315 FCR 159 at [49] (the Court), quoting Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] (Allsop CJ, with Griffiths and Wigney JJ agreeing).

48    Legal unreasonableness also takes account of the applicable statutory scheme. Here, the apparent purpose of cancellation powers such as s 501BA of the Migration Act is to protect the community (and certainly these powers cannot be exercised for punitive purposes). In this case, the Assistant Minister gave the highest priority to the need to protect the safety of the Australian community (Reasons [109]). Removal from Australia, and a period of detention pending removal, is an inherent part of that statutory scheme. It is for that reason that Collier J described immigration detention as an obvious and well-known statutory consequence of visa cancellation under s 501BA: Kerr at [40]. Of course, the fact that a consequence is obvious and well-known does not relieve a decision-maker of the need to consider it, but the Court may be more likely to treat consideration of such an obvious consequence as being implicit in a set of reasons than if a consequence raises individual or exacerbated circumstances (such as when it is not reasonably practicable to remove a person).

49    The reference to legal consequences having “neutral” weight can be understood in that context. In Kim at [43], Hespe J held that “[i]t is not inherently irrational, and therefore legally unreasonable, to consider that the legal consequence of exposure to the prospect of detention as neither weighing for or against a decision if there is no reasonable prospect of that detention being prolonged”. That reasoning applies here. Again, although Kim is being appealed to the Full Court, I agree with this reasoning (with respect) and adopt it.

50    For these reasons, Grounds 2 and 3 are rejected.

Proposed ground 4: finding as to national interest was legally unreasonable?

51    The amicus submits that there is another potential ground of review: that the Assistant Minister’s satisfaction that it was in the national interest to cancel the Applicant’s visa was legally unreasonable.

52    Argument on proposed ground: The argument is that the Assistant Minister’s consideration of each of the seriousness of the Applicant’s offending, and the risk to the Australian community, could not support a finding that cancellation of his visa was in the national interest.

    On seriousness, the amicus submits that the Applicant’s offences between 2010 and 2023 may be “serious” in the sense of grave, but they are not “serious” in the sense of requiring protection of the Australian community. That is because (it is said) the vast majority of the Applicant’s offending is not marked by violence. And it is said that the Applicant’s two offences since November 2023 (failure to appear in accordance with a court undertaking, receiving tainted property) are not capable of supporting any logical chain of reasoning that the national interest requires cancelling the Applicant’s visa. It is said these latter offences did not place members of the public or the police in any danger or fear in the course of offending.

    On risk, the amicus submits that there is no foundation for the Assistant Minister’s serious concerns about the Applicant’s motivation to adhere to his treatment plan (cf Reasons [50]). The amicus submits that the Applicant’s reoffending since the Tribunal’s decision does not show any lack of commitment or motivation to treatment. The amicus submits further that the mere fact of offending after the Tribunal’s decision was an insufficient basis for the Assistant Minister to conclude that the Applicant presented any real risk to the Australian community. The amicus contends that the Assistant Minister’s conclusions that the Applicant’s risk of reoffending was not “negligible” and there was an “ongoing likelihood” of reoffending could not support a conclusion that the national interest was served by cancellation.

53    Proposed ground 4 should be considered: The Applicant did not raise this argument; however, the Applicant was not legally represented at the hearing, and the amicus correctly points out that the issue in this proceeding is whether the Assistant Minister’s decision contains jurisdictional error. The Assistant Minister properly does not object to the Court considering the argument. I would not insist on an unrepresented applicant formally amending the originating application. It is convenient to identify the argument as “proposed ground 4”.

54    “National interest” is a broad political concept: It is common ground that any satisfaction as to the national interest in s 501BA(2)(b) must be formed consistently with the requirements of legal reasonableness: Luong at [42]. At the same time, the concept of “national interest” is broad and evaluative, and the question is largely a political one: Luong at [31]-[33]. Moreover, as noted, legal unreasonableness is a stringent standard of review. In combination, these factors mean that it would be rare that an assessment of national interest would be legally unreasonable. The Full Court in Luong made the following observations in that regard:

    Legal unreasonableness can occur either because the outcome of the exercise of the power is unreasonable, or the reasoning that led to the outcome is unreasonable. The former situation would occur if the decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law: Luong at [44]-[45].

    It would be rare that the Court would find that the exercise of a discretionary power was legally unreasonable if the reasons demonstrated a justification for that exercise of power: Luong at [50].

55    Assistant Minister’s findings were not legally unreasonable: The amicus is correct that the Assistant Minister’s findings on the seriousness of offending and likelihood of reoffending were central to his conclusion that cancelling the Applicant’s visa was in the national interest (see Reasons [56], [62]). However, for the following reasons, the Assistant Minister’s findings on those matters (and thus the conclusion as to “national interest”) were not legally unreasonable.

56    Findings on seriousness of offending: On seriousness, the Assistant Minister took the view that the Applicant’s offences involving violence, the dangerous operation of a vehicle, and obstruction of police officers in the course of their duties should be viewed very seriously, and this seriousness was confirmed by the prison sentences the Applicant had received (Reasons [38]). The Assistant Minister considered that the Applicant’s offending had put the lives of police officers, pedestrians and other road users at real risk of significant harm, and this offending put the public and the police in danger and fear, even if the Applicant had not committed any actual violence (Reasons [39]-[40]).

57    In writing, the proposed argument appeared to accept the first step above (that the Applicant’s offending before the Tribunal’s decision in 2023 is serious, in the sense of grave), but rejected the second step, on the basis that offending cannot be serious for the purposes of the national interest unless it causes actual physical harm. But there is no warrant to read this limit into such a broad notion as “national interest”: the community may require protection from harms other than physical harms, and in any event past offending that put the public and police at real risk of actual physical harm can provide a basis for concluding that the community requires protection from the risk of actual harm in the future (see Reasons [41]).

58    As refined at the hearing, the argument concentrated on the statement in Reasons [39] that the 2024 offending after the Tribunal’s decision “adds substantially” to the adverse weight to be given to the seriousness of the Applicant’s offending. The amicus contends that there is no rational basis on which the Assistant Minister could give the 2024 offending substantial additional weight, because the nature of that offending (failure to appear, receiving tainted property) is inherently less serious. The amicus submits that the Assistant Minister has erroneously considered, without any rational basis, that the 2024 offending was as serious in nature as the Applicant’s prior offending.

59    That argument should be rejected. The Assistant Minister regarded the 2024 offending as serious, in the sense of reoffending so soon after having his visa re-instated could be seen as showing a disregard for the courts and Australian laws (see Reasons [39]-[40]). The “extensive offending history” referred to in Reasons [40] (which shows disregard for the law) means on its face the entirety of the Applicant’s offending, including the 2024 offending. The statement in Reasons [36] that the 2024 offending is “consistent with” the Applicant’s prior offending does not mean that the Assistant Minister thought it was as serious in nature, by itself. Rather, the point is that the 2024 offending is not unrelated or different in kind from previous offending, and therefore is a concerning sign that the Applicant was relapsing into previous behaviours.

60    Findings on rehabilitation: On rehabilitation, the proposed argument contends that there is no basis for the statement in Reasons [50] that the Assistant Minister had “serious concerns” about the Applicant’s level of motivation to adhere strictly to Dr Palk’s regime of treatment. That statement needs to be read in the context of the Assistant Minister’s findings on rehabilitation as a whole.

(a)    The Applicant indicated that he had completed nine courses. The Assistant Minister stated, however, that the information about the courses that was provided “does not indicate, or demonstrates very little, about what [the Applicant] took from, or otherwise experienced as a result of, undertaking these courses” (Reasons [47]).

(b)    The Assistant Minister set out the Applicant’s statement that he is committed to future rehabilitation, and the assessment by Dr Palk, a forensic psychologist, in November 2023 that the Applicant’s risk of reoffending was low. Dr Palk advised that the Applicant was placed on a suboxone program, and that it was critical that the Applicant maintain medical supervision for his suboxone, that he maintained treatment with a forensic psychologist who was experienced with drug use, that they worked closely with addiction specialists and psychiatrists, and that this would ultimately depend on the Applicant’s motivation level to strictly adhere to such a regime of treatment (Reasons [48]).

(c)    The Assistant Minister noted that the Applicant had been identified (in a June 2023 psychological report) as having limited coping mechanisms, a pattern of not seeking support and had developed maladaptive coping mechanisms, which further exacerbated his issues. The Applicant was warned in 2019 that if he reoffended, that may again result in his visa being cancelled on character grounds, and he reoffended and was sentenced to imprisonment. In August 2022, the Applicant was given a recidivist risk score of 19 out of 22. That report stated that the Applicant was heavily reliant on the use of substances as a way of coping/dealing with his personal issues in the past (Reasons [49]).

(d)    Although the Assistant Minister did not object to Dr Palk’s assessment of the Applicant’s level of recidivist risk, the Assistant Minister “ha[d] serious concerns about [the Applicant]’s level of motivation to strictly adhere to Dr Palk’s advised regime of treatment, which was a fundamental finding to his assessment that the risk of reoffending was low” (Reasons [50]), stating further:

Although [the Applicant] has referred to a number of rehabilitative courses, there is no material around precisely what benefit he derived from that involvement, and there is nothing before me to indicate that [the Applicant] had plans to commit to any regime of treatment as advised by Dr Palk. Furthermore, I note that [the Applicant] has reoffended since the [Tribunal]’s decision, which undermines any findings of reduced risk of reoffending prior to and including at the time of the [Tribunal]’s decision.

61    It can be seen that the Assistant Minister’s “serious concerns” relate to the matters set out in Reasons [48]-[49]: that is, there was no information about the benefit derived from previous courses; there was no information about what treatment the Applicant had actually been undertaking (noting that in this case the Applicant was given an opportunity to provide more information); and the Applicant was identified in June 2023 as having limited coping mechanisms (see further Reasons [54]). It is true, as the amicus submits, that the Palk report was the most recent psychological assessment of the Applicant. Even so, that does not prevent the Assistant Minister from comparing that report with previous assessments (from 2022 and June 2023), to assess what weight can be given to its conclusions.

62    The fact of the Applicant reoffending after the Tribunal decision added to these concerns. It was open to the Assistant Minister to treat the fact of the Applicant’s post-Tribunal reoffending as relevant: the offence of receiving tainted property occurred less than three months after the Tribunal’s decision (Reasons [36]), and received a six-month prison sentence, suspended for 12 months. Even if this offending was not at the higher end of seriousness, by itself, it was far from trivial. It was open to the Assistant Minister to conclude that the fact that the Applicant reoffended so soon after having his visa re-instated undermined any findings that the Applicant was a reduced risk of reoffending, as held in Reasons [50]. This situation illustrates how events that occur after the Tribunal’s decision can be relevant to an assessment of the national interest under s 501BA: see XMBQ at [31] (Thawley J); cf [74], [108]-[109] (Kennett J).

63    Findings on risk: In writing, the amicus contends that the findings that the Applicant’s risk of reoffending was not “negligible” and there was an “ongoing likelihood” of reoffending could not support a conclusion that the national interest was served by cancellation.

64    However, this argument is only to express strong disagreement with the merits of the decision. There is no general requirement that the Minister be satisfied that the cancellation will be in a category of national interest that is exceptional or especially important or has some form of national significance: Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 at [106] (Colvin J) (appeal dismissed: Moli v Minister for Immigration and Citizenship [2025] FCAFC 175). This is not a case where the Minister acknowledged there was a real question of whether there was any risk of the person reoffending if they remained in Australia, and declined to reach a final view on the risk of reoffending: cf Main v Minister for Immigration and Citizenship [2026] FCA 325; (2026) 430 ALR 177 at [33] (Moore J). The Minister is not under any duty to evaluate the risk of harm to the Australian community in a particular way or ascribe any particular characterisation to the quality of the risk: see Main at [69], and the cases cited. Here, the Assistant Minister’s finding there was an “ongoing” risk of the Applicant reoffending should be understood in light of the concerns about the Applicant’s rehabilitation discussed above. The Assistant Minister expressly weighed the seriousness of the potential harm caused by any reoffending and the likelihood of reoffending in concluding that protection of the community weighed heavily in support of cancellation being in the national interest (Reasons [56]). That mode of reasoning was open to the Assistant Minister.

conclusions

65    For these reasons, grounds 2 and 3, and proposed ground 4, should be rejected. Consideration of ground 1 will be deferred, pending the High Court’s decision in the appeal from XMBQ. Costs should be reserved.

Associate:

Dated:    26 October 2026