Federal Court of Australia

Fotu v Minister for Immigration and Citizenship [2026] FCA 1589

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari directed to the respondent issue, quashing the Assistant Minister’s decision made on 28 January 2026 to set aside the decision of the Administrative Review Tribunal made on 18 December 2024 and to cancel the applicant’s visa under s 501BA of the Migration Act 1958 (Cth).

2.    The respondent pay the applicant’s 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    The applicant, born in 2001, is a citizen of New Zealand who has lived in Australia since 2008 under a subclass 444 special category temporary visa.

2    The applicant has no outstanding application for any protection or other visa.

3    The applicant participated in criminal conduct in 2022 which led to overlapping charges, but resulted in him being convicted (on his guilty plea) of one count of aggravated home burglary and one count of armed robbery. The applicant otherwise had no criminal record. The conduct involved a group of men, some of whom were armed and wearing balaclavas, forcing their way into a home in which a woman was present and alone, threatening her and stealing her property. On 23 November 2023 the applicant was sentenced in relation to the aggravated home burglary charge and received a sentence of two years’ imprisonment for his role in the conduct.

4    Having been sentenced to a term of imprisonment of 12 months or more, the applicant had a ‘substantial criminal record’ within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth) resulting in the mandatory cancellation of his visa under s 501(3A) of the Migration Act on 28 February 2024.

5    The applicant’s request for revocation of the visa cancellation decision was rejected by a delegate of the Minister. The applicant sought merits review of the delegate’s decision from the Administrative Review Tribunal.

6    On 18 December 2024 the Tribunal set aside the delegate’s decision, with the result that the applicant’s visa was reinstated and he returned to living in the community.

7    The Tribunal relevantly concluded that there was ‘clear evidence’ that the applicant had matured in the almost three years since his offending; that the likelihood of reoffending was low; that in the circumstances the consideration of protection of the Australian community weighed slightly against revocation; that the applicant’s ties to Australia weighed heavily in favour of revocation and should be given strong weight; that the best interests of minor children weighed heavily in favour of revocation; and that the legal consequences of the decision weighed in favour of revocation and should be given moderate weight. The Tribunal concluded that the considerations in favour of revocation outweighed those against it, and that the delegate’s cancellation decision should be revoked under s 501CA(4) (at [110]-[118] of the Tribunal’s reasons).

8    On 15 July 2025 the applicant was issued with a ‘Notice of Intention to consider setting aside the original decision of the [Tribunal] and cancelling your visa under s 501BA(2) of the Migration Act’. On 19 September 2025 the applicant, through his legal representatives, provided submissions in response to the Notice, a statutory declaration of the applicant, and numerous letters of support from Church members, family members, his employer and others, together with letters from a treating psychologist.

9    On 28 January 2026 the Assistant Minister exercised the power under s 501BA to set aside the Tribunal’s decision and cancelled the applicant’s visa. 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 at [17]; Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [19]-[21] (Perry J). I will refer to the respondent as the Minister for the purposes of these reasons.

10    The Minister concluded that considerations against cancellation were outweighed by ‘serious national interest considerations’. In this context, the Minister considered the risk to the Australian community and the likelihood of the applicant reoffending, concluding there remains a low likelihood the applicant will reoffend and that any likelihood of his offending being repeated is unacceptable.

11    The Minister also considered the applicant’s ties to Australia, the impediments to be faced by the applicant if removed from Australia and the best interests of minor children. He included a paragraph headed ‘legal consequences of the decision’ (extracted further below).

12    In this proceeding the applicant challenges the Minister’s decision on three grounds. The grounds relate respectively to the manner in which it is said the Minister addressed the applicant’s risk of reoffending, the interests of minor children and the legal consequences of a cancellation decision.

13    The judicial review application is brought pursuant to the original jurisdiction conferred on this Court by s 39B of the Judiciary Act 1903 (Cth) read with s 476A(1)(c) of the Migration Act relating to a Minister’s personal decision.

The Minister’s power under s 501BA

14    Where there has been mandatory cancellation of a visa under s 501(3A), then s 501CA(4) grants a discretion to a Ministerial delegate or the Tribunal to revoke the mandatory cancellation, if the decision maker is satisfied that there is ‘another reason why the original decision should be revoked’. In making a decision the delegate or the Tribunal is obliged to follow directions issued by the Minister under s 499 of the Migration Act. The Tribunal in considering the applicant’s merits review in this case expressly referred to and addressed the obligation to follow (relevantly) Direction 110 in its reasons.

15    The power granted to the Minister to override a Tribunal’s decision and cancel a visa under s 501BA is differently conditioned. It is not conditioned on the Minister being satisfied of error in the reasoning or result of the Tribunal; it is the fact that the Minister is satisfied that the cancellation is in the national interest that enlivens the power. As recently summarised by Owens J in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [17]:

Provided the Minister is satisfied that the person does not pass the character test, the Minister can set aside the decision under s 501CA and cancel the person’s visa if the Minister is ‘satisfied that the cancellation is in the national interest’: s 501BA(2)(b). The ‘national interest’ is a broad and evaluative criterion (see, e.g., Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57], per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [156]-[157], per Griffiths, White and Bromwich JJ) and ‘[w]hat is in the national interest is largely a political question’: Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; [2014] HCA 22 at [40], per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. The authorities have made it clear that it is ‘largely for the Minister and not the Courts to determine what is and what is not in the national interest’: Assistant Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAFC 195 at [137], per Besanko J. The exercise of the s 501BA power is, of course, still conditioned by a requirement it be exercised reasonably: CWY20 at [140], per Besanko J; Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 at [20], per Mortimer J, and [86], per Thomas J. That notwithstanding, the power under s 501BA remains ‘fundamentally different from that which is exercised under s 501CA’: Vargas v Minister for Home Affairs (2021) 286 FCR 387; [2021] FCAFC 162 at [61], per McKerracher, Markovic and SC Derrington JJ.

See also Moli v Minister for Immigration and Citizenship [2025] FCAFC 175; (2025) 313 FCR 385 at [19] (Derrington, Raper and Vandongen JJ).

16    The nature of the power under s 501BA(2) has been described as ‘exceptional’ (Rares J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 at [13]); ‘draconian’ (Mortimer J in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270 at [14]); and ‘extreme and largely unaccountable’ (Bromwich J in Tereva at [39]).

17    There is no obligation on the Minister exercising power under s 501BA(2) to follow directions published under s 499. Nor is there any obligation to comply with the rules of natural justice, as s 501BA(3) expressly provides.

18    Although the Minister’s power to determine cancellation to be in the national interest is broad, it is not unfettered or unbounded, and is subject to conventional judicial review principles: Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

19    As it happens, in this case the Minister by way of seeking to afford natural justice invited the applicant to provide submissions in response to the Notice, an opportunity that was taken.

20    It was not in issue that the applicant fails the character test, having regard to the period of imprisonment he has served (s 501(7)(c)). The matters the subject of this review application therefore relate to the Minister’s conclusion that it was in the national interest to cancel the applicant’s visa.

The briefs to the Minister

21    The Department provided a brief (received 3 June 2025) to the Minister for the purpose of consideration of cancellation of the applicant’s visa. The brief attached a draft statement of reasons (not provided in the Application Book). It also relevantly stated:

18.    A decision to set aside the decision of the ART and cancel Mr FOTU's visa will result in him becoming an unlawful non-citizen, liable for immigration detention under s189 of the Act. Following such a decision, the Department of Home Affairs will give Mr FOTU notice of your decision and take him into immigration detention. Once detained, unless a new visa is granted, Mr FOTU will be liable to removal from Australia as soon as reasonably practicable, and in the meantime, liable to detention under s189, provided that removal is practicable in the reasonably foreseeable future, or until granted a visa. If you do not cancel Mr FOTU's visa he will remain in the community.

22    In response to the brief, the Minister chose to invite submissions from the applicant.

23    Once received, a further brief was provided by the Department to the Minister (‘decision page’ signed by the Minister on 28 January 2026), again with a draft statement of reasons (also not provided in the Application Book but said by the applicant’s supplementary submissions to be in the same form as the final reasons).

Grounds of review

24    The grounds of review direct attention to three matters:

(a)    the relevance of the effect of the applicant’s ‘chronological maturation’ on the risk of reoffending;

(b)    the Minister’s consideration of the interests of minor children, being relevantly a large number of nieces, nephews and cousins; and

(c)    the alleged failure by the Minister to have regard to the legal consequences of the decision to set aside the Tribunal’s decision and cancel the visa.

Ground 1 – ‘chronological maturation’ and the risk of reoffending

25    The Minister observed that matters of national interest include the protection of the community (including the government’s commitment to end violence against women) and the expectations of the Australian community (at R [16]).

26    In considering whether it was in the national interest to cancel the applicant’s visa, the Minister said he gave the highest priority to the safety of the Australian community and the need to protect the Australian community. He said that in determining this question he considered the seriousness of the applicant’s criminal conduct, the likelihood of him reoffending, and the risk he poses to the Australian community if such a likelihood eventuated (at R [16]-[17]).

27    The Minister set out the circumstances of the offending by reference to the sentencing judge’s comments, observing that:

(a)    the applicant and the co-offenders broke into a home by smashing a rear door, armed with a hammer or small axe;

(b)    they were wearing balaclavas;

(c)    a female occupant was home alone at the time, was having a shower, heard the intruders and ran to her bedroom, but was followed by the offenders;

(d)    they made threats to the woman in the bedroom, stood over her and demanded she hand over money and jewellery, including rings that she told them belonged to her grandmother and were not valuable;

(e)    one of the offenders raised an axe above his head and said ‘give them to me or I’ll hurt you’; and

(f)    the offenders stole a number of items, including jewellery and a safe.

28    The Minister also noted the sentencing judge’s acknowledgement that there was one offender who did not enter the bedroom, but it was not possible to conclude which of the offenders was that person. As to this matter, the sentencing judge said:

If you were the one who did nothing, that does not detract from going in there as part of the common purpose, knowing that everyone was armed. You can't be part of a group which smashed its way into a house, armed, yet claim to be shocked that something bad happened … even if you didn't take an active role inside the house as some others, you still swelled the numbers against the victim. She was terrified by the number of men in the house, and by your presence you encouraged the others.

…

You're being sentenced on the basis you were one of the offenders who went into the house dressed in a balaclava or mask, armed with weapons, where she was terrified and threatened, firstly, with a hammer and then with an axe, and where items were stolen, including cash.

29    The sentencing judge described the facts of the offending as very serious, and said:

... offences of this nature, where burglars work as a crew, dressed in balaclavas or masks and carrying weapons to both avoid being caught and to intimidate and terrify any occupants they may encounter, are vicious and callous and have a tendency to traumatise people and damage their lives for years afterwards.

30    The Minister noted in his reasons that before the Tribunal the applicant maintained he was the offender who stayed outside the victim’s bedroom. This assertion was accepted by the Tribunal who described his offending as ‘serious’.

31    The Minister also recorded that the applicant accepted (in written submissions before the Tribunal) that his offending was very serious, despite the fact that he did not physically harm the victim, and was not convicted of an assault. The applicant had acknowledged that ‘he was involved in an act that was inherently aggressive and directed towards a woman who was in a very vulnerable position’.

32    The Minister disagreed with the Tribunal’s decision of the offending as ‘serious’ and, having also taken into account the deleterious impact of the offending on the victim and the sentence of imprisonment imposed, concluded that ‘the nature of [the applicant’s] violent criminal conduct [was] very serious’.

33    The Minister then turned to the risk of reoffending and listed a number of matters that he said he took into account relating to past conduct, and remorse and rehabilitation, ‘where relevant information is available’.

34    As to factors contributing to past conduct (R [42]-[49]), the Minister noted that the applicant had no history of using drugs and no mental health concerns at the time of offending. He had been assessed by a psychiatrist as having a level of intellect ‘rather lower than average’. He was concerned about being teased by the co-offenders if he did not participate. He was ‘vulnerable to being led’. The psychiatrist considered it probable that the applicant has Attention Deficit Hyperactivity Disorder. The sentencing judge observed that such a condition ‘can affect a person’s ability to make important decisions’. The applicant was motivated to participate by money, although in the end he received only ‘a couple of hundred dollars’ for his role in the offending. The Minister concluded his consideration of these factors by stating at [49]:

I have had regard to the information before me and consider that Mr FOTU's offending was financially motivated and influenced by peer pressure and poor decision making; and that his lower than average intellect and potential ADHD may have contributed to these factors.

35    Turning to remorse (R [50]-[54]), the Minister accepted that the applicant was remorseful. The sentencing judge had noted that the applicant had assumed the occupant of the house would be male and the applicant recognised that the woman would have been frightened and traumatised. The Minister took into account that the applicant pleaded guilty and acknowledged responsibility for the offending. He had cut ties with his co-offenders immediately.

36    It is the next part of the Minister’s reasons, in which he considered the issue of the relative youth of the applicant at the date of offending and the subsequent passage of time, that underlies ground 1. The Minister said:

55    In determining the factors that lessened his risk of reoffending, the ART took into consideration Mr FOTU's youth at the time of offending, noting that adults are not fully mature until at least age 25, and that he was (at the time) 34 months older, which was considered a 'not insubstantial period of time' Attachment D [Tribunal’s reasons].

56    Although noting that Mr FOTU was only 20 years of age at the time offending, and accepting as described by the court that 'young men can act without properly thinking through the consequences' and maturity can develop with time Attachment B [District Court sentencing remarks], I have considered that there are many men who are 20 or younger and do not offend, and many men who are over 25 yet still offend. I consider this argument is untenable.

37    There was some debate during the hearing before me as to what argument was said to be untenable by the Minister.

38    The paragraphs of the reasons (R [50]-[54]) that precede the above extracts deal with remorse, concluding with a statement that the Minister accepted that the applicant was remorseful for his offending. The paragraph that succeeds the extracts (R [57]) addresses and provides a conclusion in relation to particular remarks of the sentencing judge:

The sentencing remarks noted that Mr FOTU was vulnerable to being led and to going along with his friends; less likely to be able to assess the consequences of his offending; and that ADHD can affect a person's ability to make important decisions Attachment B. I consider that these factors would likely increase his vulnerability to reoffending, particularly if he has undiagnosed ADHD which remains untreated.

39    I accept the applicant’s submission that the argument said to be ‘untenable’ can only sensibly be understood as a reference by the Minister to the view of the Tribunal and the sentencing judge that developing maturity in a (formerly) young offender is relevant in assessing the risk of the applicant reoffending. The Tribunal examined the evidence relevant to the applicant’s maturity carefully and in considerable detail (at [71]-[72] of its reasons). The Tribunal found (at [73]-[74]) that there was ‘clear evidence’ of his ‘increased maturity both chronologically and in terms of his decision-making and his interactions with other people and situations of danger’, and that such increased maturity supported a conclusion that ‘the likelihood of him engaging in further criminal or serious conduct is low’.

40    In reaching this conclusion, the Tribunal said:

[71(a)]    At the time of the offence Mr Fotu was aged 20 years and eight months of age, at the time of his sentencing he was aged 22 years and five months, at the time of the hearing before me he was aged 23 years and six months. He is therefore 34 months older now than he was at the time of the offending, a not insubstantial period of time in the life of a young person.

41    The Tribunal by footnote to this statement referred to both academic literature in the field and the comments of the sentencing judge:

It is well recorded in the psychological literature that emerging adults, aged 18 – 25 or thereabouts, are not fully matured humans with fully developed reasoning skills. The maturing of young people comes along with attendant life experiences and the opportunity to learn from these experiences, see Rudling, E, Shelley, B, Chuah S-H, Hoffman, R [and] Lang, M (2023) Emergent Adulthood Review of Literature. Hobart: Tasmanian Behavioural Lab, University of Tasmania, 8-12. This was reflected in the Judge’s sentencing remarks when she said at Exhibit R1, G5 page 50 ‘it’s understood young men act without properly thinking through the consequences. And it’s to be hoped that, as they get older, maturity kicks in and they become less likely to offend’.

42    The sentencing judge accepted that the applicant ‘probably represents a low risk of reoffending’ because the offending was out of character, and said that until he matures, he ‘may always be a person who’s likely to go along with [his] friends’. Clearly an increase in maturity over time was considered by the sentencing judge to be relevant to her Honour’s sentencing exercise.

43    By contrast, the Minister in effect said that reliance on developing maturity in considering the risk of reoffending was ‘untenable’, reasoning only that ‘there are many men who are 20 or younger and do not offend, and many men who are over 25 yet still offend’.

44    I will return to this impugned reasoning but before doing so, extract the Minister’s conclusion in relation to risk to the community:

82    I have found that Mr FOTU's conduct is very serious and that such conduct has the potential to cause physical and/or psychological injury and/or financial harm.

83    I have taken into account the factors advanced in relation to Mr FOTU's offending. I have considered Mr FOTU has taken positive steps towards rehabilitation, was of satisfactory behaviour in prison, has not reoffended whilst being in the community, has demonstrated personal growth and has protective factors that could reduce his likelihood of reoffending.

84    Notwithstanding this, I remain concerned that the support of Mr FOTU's family previously existed, however did not deter him from offending; he was employed prior to offending; his intellectual functioning increases his vulnerability to be led by peers; that he may have undiagnosed ADHD requiring treatment; and that he has not continued with rehabilitation in the community despite professing that he would continue counselling.

85    I have found that on balance that there remains a low likelihood that Mr FOTU will reoffend.

86    I note that the ART found that the protection of the Australian community 'weigh[ed] slightly against revocation' …. However, considering the impact of the offending on the victim and the need to protect the Australian community from further harm, I reject this contention.

87    Considering the nature and seriousness of Mr FOTU's conduct, the potential harm to the Australian community should he commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr FOTU reoffending, I consider that any likelihood of Mr FOTU's offending being repeated is unacceptable. I find that the need to protect the Australian community from criminal or other serious conduct weighs heavily in the national interest and in support of visa cancellation in this case.

45    Two things should be noted. First, the impact of youth and increasing maturity is not mentioned as a factor taken into account at R [83], consistent with the Minister’s dismissal of its relevance at R [56] as untenable. Second, at R [83] the Minister refers to the applicant’s ‘personal growth’. In context, however, this is sensibly and objectively understood as a reference to other parts of the reasons that refer to the applicant having undergone spiritual and personal growth (R [67] and [77]), rather than the specific issue addressed at R [55] and [56].

46    The applicant contends by ground 1 that the Minister’s reasoning (revealed by R [55]-[56]) was affected by irrationality, illogicality and legal unreasonableness.

47    The principles were not in issue. Legal unreasonableness may be found in an ultimate conclusion or in a process of reasoning employed in the course of reaching an ultimate conclusion: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [81]-[82] (Nettle and Gordon JJ), citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [105] (Gageler J); Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81] (Mortimer CJ).

48    A conclusion that a finding is illogical or irrational is not to be drawn simply because the Court disagrees with the finding or would have made a different finding. A decision (including a finding) will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if the decision was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [129]-[131], [135] (Crennan and Bell JJ).

49    Although the Minister was not obliged to engage with or refute the Tribunal’s reasons (Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192; (2025) 314 FCR 376 at [54]), in this case he elected to do so in some respects, and his reasons in relation to what was said by the Tribunal are therefore important in revealing his reasoning as a whole. The question is whether it was open to the Minister to engage in the process of reasoning in which he engaged and make the findings on the material before him.

50    The Minister has reasoned that because to his knowledge, experience reveals that young persons do not always offend and that older people may sometimes offend, it is wrong (‘untenable’) to proceed on the basis that the applicant’s youth and the prospect or evidence of his growing maturity were relevant to reducing his risk of reoffending. The Minister dismissed its relevance on the basis that a general proposition (objectively unsurprising and accepted by the sentencing judge and the Tribunal, the latter having informed itself by reference to academic literature) should be completely disregarded because it is known that there are exceptions to it.

51    The approach of the Minister was extreme: that is, it is not a case where he disagreed with the weight or assessment of the evidence about the applicant’s increasing maturity since the time of his offending (as a 20-year old), but rather where any prospect of his maturity being relevant to the assessment of the risk of his reoffending was dismissed as ‘untenable’.

52    This reasoning involves a want of logic. The Tribunal’s reasoning may be understood as follows. There exists a group of young men who when aged about 20 offend. By the time they are aged 25 or thereabouts, some of those men will have reoffended and some will not. The Tribunal argued (and concluded) that the reason that some in that cohort will not have reoffended is that they have developed in terms of maturity, which in turn assists in decision-making. The Minister references a different group, being ‘many men who are 20 or younger and do not offend’. This says nothing about the group to which the Tribunal is referring. In fact, the Minister’s reference to this separate cohort does not contradict or answer the Tribunal’s argument. Similarly, the Minister’s observation that ‘many men who are over 25 yet still offend’ says nothing about the relevant group, being those who did offend at 20 but at age 25 do not offend.

53    The Minister’s apparent view that his observations rendered the Tribunal’s argument ‘untenable’ therefore reveals illogicality and/or a misunderstanding of the Tribunal’s argument.

54    It also indicates irrationality because the Minister, having seemingly accepted the general premise cited by the sentencing judge that ‘maturity can develop with time’, proceeded to expressly disregard (as untenable) that general premise insofar as the applicant’s circumstances were concerned and did not seek to apply it or make findings about the relevant evidence in that regard at all.

55    Counsel for the Minister acknowledged that the Minister had on occasion in the reasons used an unfortunate choice of words. For example, on a number of occasions he referred to the Tribunal’s findings or conclusions as arguments or contentions. I acknowledge the well-established principle that reasons of a decision maker are not to be read with an eye finely attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)). I accept such examples are unfortunate rather than indicating error.

56    However, the Minister’s use of the word ‘untenable’ is in a different category. In saying this I have also had regard to the whole of the reasons.

57    I do not consider a logical or rational person would have reached a conclusion that it was untenable to have regard to the applicant’s maturity over time in the face of the available evidence.

58    The question of the materiality of the error then arises.

59    An error will be material if there is a realistic possibility of a different outcome had the error not been made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14]-[15]. A court is not permitted ‘to fill in gaps in the path of reasoning’: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; (2023) 297 FCR 1 at [61] (Markovic, Thomas and Button JJ) (not disturbed in this regard by the High Court in LPDT). The Court ‘must assume a [decision maker] acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction’: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [174] (Kerr and Mortimer JJ at [174], Allsop CJ agreeing). Even if it is ‘highly likely’ the decision would have been the same, there may be a realistic possibility the decision could have been different as a matter of reasonable conjecture: Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [121] (McDonald J).

60    The Minister submitted that the Minister made unchallenged findings about matters that elevated the applicant’s risk of reoffending (at R [84], extracted above) and concluded that ‘any likelihood of offending being repeated was unacceptable’ (original emphasis). Therefore, the Minister submitted, there is no realistic possibility that the decision that was made in fact could have been different if the error had not occurred. Even if the Minister had assessed the risk of reoffending having regard to the impact of the applicant’s developing maturity, there would still be a likelihood or risk of reoffending, no matter how minimal, and so much was considered unacceptable by the Minister.

61    Relevant to this submission is the use of the words ‘any likelihood’, words which perhaps have their provenance in earlier iterations of ministerial directions (such as Direction 65 and Direction 79) but subsequently have been amended. Expressed generally, more recent ministerial directions refer to a decision maker considering ‘the likelihood’ rather than ‘any likelihood’. Be that as it may, I accept the submission of counsel for the applicant that ‘any likelihood’ should not be read so as to mean any risk whatsoever. If that were a correct reading, it would mean there was no evaluative task to be undertaken because no-one could logically dismiss there being any risk at all of a person reoffending. I accept the applicant’s submission that the better reading of R [87], read with R [83]-[86], is that the risk, although assessed as low at R [85], was nonetheless unacceptable.

62    There is a spectrum of qualitative assessment and descriptors of risk including (for example) very low to very high. The Minister’s submissions before me can be taken to acknowledge and accommodate this, regardless of his focus on the words ‘any likelihood’. The submission encompasses a proposition that the Minister had already assessed the risk of offending as ‘low’ and so whether he had regard to an additional factor (maturity) in a manner that favoured the applicant would not have made any real difference to that assessment. Counsel for the Minister submitted in effect that even if the Minister had not erred and had regard to the matter of the applicant’s maturity, and even if the Minister then recalibrated the risk of reoffending as (for example) ‘very low’, such risk would still be considered unacceptable.

63    However, it is apparent that the Minister’s qualitative finding at R [85] was reached after considering factors for or against, informed by taking the issue of developing maturity of a young offender ‘off the table’ because of the impugned reasoning at R [56].

64    To assume that proper regard to that issue would make no difference to the risk being considered unacceptable would involve improper speculation as to how the Minister might have discharged his power: LPDT at [15], [35]-[36].

65    If, in assessing the factors that he considered diminished the prospect of the applicant reoffending, the Minister had regard to the likelihood or effect of the applicant’s increasing maturity, a different decision could realistically have been made. The balance of the evaluation between protective factors and issues of concern at R [84]-[85] may have shifted.

66    As the applicant submitted, having regard to all the relevant factors, the Minister’s qualitative assessment of risk could also have differed and the finding that ‘on balance there remains a low likelihood’ of the applicant reoffending could have been altered, such that the low risk finding was reduced to a slight or even acceptable risk. Again, a different decision could realistically have been made.

67    Whilst acknowledging the different context of a Parole Board review, I note the applicant’s submission that it is not irrelevant in considering the evaluative task required under s 501BA that the Parole Board considered that the applicant’s release presented ‘an acceptable risk to the safety of the community’ and that if his visa cancellation is revoked, his release ‘does not pose an unacceptable risk to the safety of the community’.

68    All of these matters reveal and highlight the qualitative nature of the task and the fact that it is impermissible for this Court to embark on any form of merits review. In the circumstances, one cannot confidently conclude that there could not realistically have been a different outcome.

69    I consider the error to have been material, such that the Minister’s decision of 28 January 2026 is affected by jurisdictional error.

Ground 2 – findings as to the interests of minor children

70    The applicant apparently stated in his evidence to the Tribunal that he had six nephews, one niece and approximately 15 cousins in Australia under the age of 18. In his statement of facts, issues and contentions he listed 10 of these minor children as those who could be affected by a cancellation of his visa.

71    The Minister listed these ten children in his reasons and said that he treated the interests of minor children as a primary consideration.

72    The Minister noted the representations made by the applicant, stating (at R [104]):

Mr FOTU's representations express that his relationship with the minor children in his life is very good and that he treats them as if they were his own children and looks at them as younger siblings. Mr FOTU explains that as some of the children stay at his parent's home, where he also resides, he gets to see the children every day. He also states that he plays a big part in helping the children's parents with support such as babysitting and school clothing. He states that he provides practical, financial and emotional support to them ….

73    The Minister also referred to photos demonstrating time spent by the applicant with the children and made particular reference to three representations from two of the applicant’s siblings and one sister-in-law referring to his close bonds with their respective children and the distress the children would feel if the applicant were to be removed.

74    Although the detail of each was not traversed in his reasons, the Minister cross-referenced a number of documents before him, including a statement of facts, issues and contentions provided to the Tribunal by the applicant (Attachment Q) and the applicant’s bundle of evidence (Attachment R), the latter including statutory declarations relevantly provided by the applicant’s siblings and his father.

75    The Minister concluded (at R [108]):

While I accept that Mr FOTU plays a significant role in the above listed children's lives, I note that he does not fulfil a full-time parental role. There is nothing to indicate that the children's parents; grandparents, who they also reside with; or their other family members in Australia could not provide care to the children. Nevertheless, I find that it is in the best interests of the above minor children, being the children and stepchildren of Mr FOTU's siblings and cousin that I do not cancel Mr FOTU's visa. I have given this consideration moderate weight against visa cancellation.

76    The applicant contends by ground 2 that the Minister’s decision is affected by jurisdictional error because he failed to engage with the circumstances of each child and rather treated them as ‘an undifferentiated block’, and thereby failed to discharge the required fact-finding task in accordance with the bounds of reasonableness. Further, the applicant contends that the Minister made errors about the ages of some of the children and failed to take into account evidence from the applicant’s sister to the effect that her parents would ‘likely’ leave Australia with the applicant if he were deported, so breaking up the family.

77    The issue raised by ground 2 was the standard of fact-finding required by the Minister under s 501BA(2) in circumstances where he made reference to the interests of minor children as a primary consideration relevant to the exercise of his discretion. According to the applicant, it was therefore mandatory that the Minister, in considering the best interests of minor children: engage with what is likely to occur to each child; specifically articulate how the lives of affected children are likely to be affected as a matter of factual reality; and have regard to such evidentiary material that bore on that consideration.

78    As noted in the introductory discussion of the principles, s 501BA(2) of the Migration Act does not specify any mandatory relevant considerations to which the Minister must have regard in forming a view about the national interest or in the exercise of the discretion in that section.

79    As explained by the plurality in Po’oi at [54] (emphasis added):

Section 501BA of the Act does not require the Minister to have regard to any particular matter not only in forming a view about the national interest but also in deciding whether to exercise the discretion in that section. That is, the section does not specify any mandatory relevant considerations in relation to these issues. It is up to the Minister to decide which matters to take into account, the extent to which the Minister considers them and the weight, if any, to be given to them. It follows that the Minister is not legally required to consider the reasons of the AAT or any particular material that was before the AAT, and that failure to consider those reasons or any such material could not, without more, go to jurisdiction. However, as with other material, the Minister may decide to take into account the reasons of the AAT or material that was before the AAT. See Vargas v Minister for Home Affairs (2021) 286 FCR 387 at [61] and [62] (McKerracher, Markovic and SC Derrington JJ); CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [32] (Owens J).

80    The emphasised passage was repeated in Luong v Minister for Immigration, Citizenship and Cultural Affairs [2026] FCAFC 6; (2026) 315 FCR 159 at [38] (Charlesworth, Kyrou and Neskovcin JJ).

81    The applicant relies on a further passage in Luong. The plurality considered various examples of potential legal unreasonableness in the context of s 501BA, including the manner by which a Minister has regard to a non-mandatory consideration. On this point the plurality relevantly stated at [46]:

Another instance of legal unreasonableness is where the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case but then fails to consider that matter either at all or misconstrues or misunderstands it to such an extent as to amount to a constructive failure to consider it: Po’oi at [65] (Kyrou and Needham JJ), citing Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Robertson J).

82    However, it is important to have regard to what was said by the plurality in Po’oi in full at the cited paragraph, being [65] (emphasis added):

Legal unreasonableness can arise in many ways. An instance is where the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case but then fails to consider that matter either at all or misconstrues or misunderstands it to such an extent as to amount to a constructive failure to consider it: see Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Robertson J). In our opinion, if the Minister expressly or impliedly states that a particular matter is sufficient in itself to dispose of the case – that is, the Minister identifies the matter as a proper basis for disposing of the case – but the Minister actually or constructively fails to consider that matter, then the Minister’s decision would be legally unreasonable and thus vitiated by jurisdictional error.

83    Justice Snaden, writing separately in Po’oi on this discrete issue said:

[2]    The solitary issue upon which I should separately opine concerns the appellant’s contention that ‘…something that is not a mandatory consideration doesn’t need to be considered, but if it is considered then you have to get it right’. It was said that a failure to ‘get it right’ sounds as jurisdictional error in the form of ‘unreasonableness or illogicality’. The plurality addresses that contention at [65]. I shall make my own observations about it.

[3]    The appellant’s contention was said to reflect what Robertson J observed in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438, 457 [89], namely:

It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ. This may be an example of ‘an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria’: Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162.

[4]    His Honour was there astute not to state any proposition in terms as definitive as those preferred by the appellant. In any given case, it might be that a decision maker’s failure properly to take account of a non-mandatory consideration that he or she has identified as material or dispositive reflects jurisdictional error in the form of legal unreasonableness or illogicality (of a kind recognised by authority). Legal unreasonableness, though, ‘…is inherently sensitive to context [and] cannot be reduced to a formulary’: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 567 [59] (Gageler J). Its chameleonic nature is such that the court should refrain from recognising the appellant’s contention as though reflective of some binding point of principle applicable in all cases.

84    I acknowledge Snaden J’s concern as to the extent to which ‘categories’ of legal unreasonableness might be defined, but I do not need to address that concern further because in any event, the plurality’s qualification at [65] of Po’oi, apparently otherwise limiting the scope of the reasons to circumstances where the Minister has identified the matter in issue as a ‘proper basis for disposing of the case’, undermines the basis of ground 2 of this application. In this case the Minister did not identify the interests of minor children as dipositive of the application.

85    In this case it is readily apparent that having identified the best interests of the children as a primary consideration, the Minister chose to take into account various statements provided by the applicant’s family members about the children and expressly referred to some of the evidence in his reasons. The fact that all evidence in the statements addressing the children was not referred to does not mean it was not considered. However, consistent with the explanation in Luong, the extent to which the Minister was obliged to consider the various statements (and the applicant’s statement of facts, issues and contentions) and the weight to be given to them remained matters for him.

86    I reject the applicant’s contention that the Minister’s reasons relating to the children are formulaic or reduced them to ‘an undifferentiated block’. Although the Minister did not refer to each child’s circumstances separately or to all of the evidence before him, it is apparent from the reasons that the Minister: observed distinct matters relevant to particular children; gave consideration to the evidence from the applicant’s siblings; appreciated the close role played by the applicant in their lives; and appreciated that within the applicant’s large extended family there are many other family members in Australia in the lives of the various children. The fact that the applicant is the uncle or cousin to the children, rather than being directly responsible for their wellbeing and necessities, was a relevant matter taken into account by the Minister, as his conclusion reveals. The Minister was clearly influenced in reaching his conclusion by the presence of the children’s parents and the broader family unit in Australia. No error in that reasoning is disclosed.

87    Having regard to the broad nature of the Minister’s discretion, including the discretion to decide which matters might be taken into account and what (if any) weight should be accorded to them, no failure to consider relevant material, nor failure to make essential findings of fact, is established.

88    I turn to the two factual matters raised by the applicant in ground 2.

89    The first relates to some minor errors in recording the current ages of the children. Such errors are not significant in the context of this hearing and counsel for the applicant did not contend otherwise at the hearing.

90    The second relates to the Minister’s conclusion at R [108], insofar as it said that ‘there is nothing’ to indicate that the children’s grandparents, who they were residing with, could not provide care to the children if the applicant were deported. One of the applicant’s sisters had stated in her statutory declaration provided to the Minister that it was ‘likely’ her parents would move to New Zealand to be with the applicant if he were deported. The applicant asserted that the Minister therefore made an incorrect statement that ‘there [was] nothing’ to suggest the children’s grandparents (relevantly the applicant’s parents) would not be around to provide care to the children. It is not clear that the Minister’s failure to refer to or place weight on this evidence was in fact an error. The assertion was made by one sister that such a result was ‘likely’. Departure to New Zealand by the parents was not something referred to, for example, in the applicant’s father’s statement. In any event, such error in fact-finding does not, without more, establish jurisdictional error.

91    Ground 2 is rejected.

Ground 3 – legal consequences of exercise of power

92    The applicant contends by ground 3 that the Minister did not consider the direct and immediate statutory consequence of the decision that the applicant would be deprived of his liberty and detained in immigration detention after an extended period re-establishing his life in the community.

93    It is confirmed by Full Court authority that the Minister exercising power under s 501BA is obliged to consider the legal consequences of their decision: Chukwuma v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 121 at [64]-[65] (Moshinsky and Dowling JJ); Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130 at [64]-[65] (Collier, Neskovcin and Moore JJ).

94    The scope of such consequences to be considered may vary depending upon the statutory provision in issue and may extend to consequences that are not direct or certain, as discussed and accepted in Manebona at [67], citing Fraser v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 336 at [37]-[38] (Colvin J); see also Rano v Minister for Home Affairs, Minister for Cybersecurity [2024] FCA 1003 at [4]-[6] (Feutrill J). In Manebona the legal consequences of the visa cancellation were described at [71] as a ‘return to immigration detention and almost certain deportation in due course’. In CRRN, the inevitable consequences were that no permanent visa option would be available to the applicant and that he would therefore become ineligible for the NDIS (at [61]). The applicant in this case in ground 3 relied on the Minister’s alleged failure to consider the certain (‘direct and immediate’) legal consequence of visa cancellation that the applicant would be taken to and held in immigration detention. This is to be viewed in the context of the broader legal consequence that the applicant would be removed from the community and held in immigration detention and would be removed to New Zealand.

95    The Minister was informed of the effect of the cancellation of the applicant’s visa by the briefs he received (see [21]-[23] above). Relevantly, as the extract reproduced at [21] above shows, the Minister was expressly informed that on cancellation of his visa the applicant would be taken into immigration detention.

96    The Minister had also been provided with the reasons of the Tribunal, which specifically addressed the legal consequences of a decision to cancel a visa, referring expressly to: s 189 of the Migration Act (non-citizen must be detained); s 198 (non-citizen must be removed as soon as is practicable); the fact that the applicant was at the time of the reasons in immigration detention because his visa had been cancelled; the fact that his removal from Australia would likely be permanent; and the practical effects of removal on the applicant. The Tribunal concluded that the legal consequences of the decision carried moderate weight in favour of revocation of the delegate’s decision to cancel the applicant’s visa (Tribunal reasons [97]-[102]).

97    However, within the Minister’s reasons (R [125]) the issue is directly raised only by the heading to a paragraph, as follows:

Legal consequences of the decision

125.    Mr FOTU has not made any claims which require assessment in relation to Australia's international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is necessary in this case. Further, Mr FOTU is not covered by a protection finding as defined in s197C of the Act.

98    What is said by the Minister in this extracted paragraph is not a legal consequence of the cancellation decision. It provides information which indicates that the applicant had no other visa option available to him at the time, but it does not expressly refer to the direct and immediate legal consequences of cancellation in this case, being removal from the community, detention in immigration detention and removal to New Zealand.

99    Other decisions of this Court indicate that the Minister has included the same heading followed by a similar reference to protection matters in other visa cancellation reasons: for example, Manebona (at [54]) and Fraser (at [43]). Inclusion of this paragraph (without more) does not evidence consideration of the legal consequences of a visa cancellation.

100    In the present case, there is no further reference to ‘legal consequences’ in the reasons, including in the section in which the Minister collects the factors that he considers weigh in favour of and against a decision to cancel the visa.

101    However, the Minister’s reasons are not to be construed by reference only to R [125]. The consideration of the consequences or effect of the exercise of power may be subsumed in the consideration of other matters. The question in this case is what can be inferred from the reasons as a whole as to whether the Minister considered the legal consequences of the decision, being removal from the community, and being taken into and held in immigration detention until being deported to New Zealand.

102    Before embarking on this task, I note three recent examples of authorities that have addressed this issue in different scenarios.

Manebona

103    In Manebona at [72] the Full Court confirmed that it may be inferred from the reasons of a decision maker that the legal consequences of visa cancellation, such as a return to immigration detention, were considered, even if the consequences are not expressly referred to in terms of ‘legal consequences’.

104    In Manebona, the Minister had received a briefing paper that included an analogous paragraph to that extracted above at [21] (Manebona at [70]). The Minister’s reasons also contained an analogous paragraph to that extracted at [97] (Manebona at [54]).

105    Immigration detention was referred to by the Minister once in his reasons the subject of Manebona in a different context. At [38] of his reasons, in the context of considering risk to the Australian community, the Minister referred to the applicant’s motivation for not relapsing and recorded that the applicant ‘understands that any return to offending will result in further incarceration, which will inevitably result in the cancellation of his visa, a return to immigration detention and almost certain deportation in due course …’: Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 at [72]-[73] (Wheatley J) (Manebona PJ).

106    The primary judge in Manebona PJ at [77] concluded that:

A review of the Minister’s Decision makes plain that he was aware that he was considering whether to set aside the Tribunal Decision and cancel the Applicant’s visa. A legal consequence of that, again plain on a reading of the reasons as a whole, is that the Applicant will be deported. This is the underlying rationale for the Minister considering, as part of exercising his discretion, the matters which follow if the Applicant’s visa was cancelled and the Applicant was deported from Australia. The issue of the Applicant being returned to immigration detention has been identified at some way in the Decision and it was a matter expressly raised in the Submission, which was considered. The better view then is that the Minister considered that the Applicant would be liable to mandatory detention, but as there was no evidence or submission that the detention would be prolonged or indefinite, the Minister did not regard it as material. The Minister also recorded that the Applicant had no outstanding application for a protection visa, which would further support a view that any detention prior to removal to the Solomon Islands would not be prolonged or indefinite.

107    The appeal from her Honour’s decision was dismissed. Relevantly, the Full Court in Manebona gathered the principles that apply to statements of reasons and inferences at [69]:

The following settled principles apply to statements of reasons and inferences that can be drawn from such reasons. First, the statement of reasons must be read fairly and not in an unduly critical manner and it must be read in light of the content of the statutory obligation, if any, pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The Court is not astute to discern error when considering the meaning of reasons. Further, any inference that the Minister has not engaged in an active intellectual process, that is, by failing to consider a relevant matter, will not lightly be made and must be supported by clear evidence, bearing in mind the applicant for judicial review carries the onus of proof: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48] (Griffiths, White and Bromwich JJ). A mere non-reference to a matter in a statement of reasons does not necessarily mean that the matter was not considered, however, it may entitle the Court to infer it was not considered to be material: Carrascalao at [45].

108    Having referred to the Minister having received the Department’s submissions, the Minister’s citation of the power to cancel a visa under s 501BA and the reference to the applicant’s understanding of the risk of indefinite detention at [38] of the Minister’s reasons, the Full Court relevantly concluded at [72]:

The Minister plainly was aware of and, it may be inferred, considered the legal consequences of the decision for the appellant, namely, a return to immigration detention and removal from Australia. Furthermore, the Minister clearly referred to that consequence, at R [38].

Chukwuma

109    Chukwuma is an example of where a Minister’s decision was set aside on the basis of his failure to consider the legal consequences of his decision. However, the legal consequences were peculiar to the applicant’s position. The Minister’s reasons did not take into account that if the applicant’s visa were cancelled, the almost inevitable consequence would be that he would be issued with a Bridging (Removal Pending) visa, and this would expose the applicant to removal to Naoero if a third country reception arrangement were entered into with Naoero. It was not possible given those facts to infer that they had been considered and they were not otherwise referred to.

Chapman

110    The decision of Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24 (Lee J) provides an example of the Court being satisfied that ‘looking at the overall quality of the Minister’s reasons’, there was no reason to believe the Minister failed to appreciate that an effect of the Minister’s decision would be that the applicant would be unable to return to Australia indefinitely. Matters from which the inference was drawn included the Minister’s reference to ‘permanent separation’ from the applicant’s children if he were removed; and the Minister’s statement that the Australian community, as a norm, expects the Government to not allow a citizen in the applicant’s circumstances to ‘enter or remain in Australia’.

Consideration

111    For the following reasons, despite the lack of express reference to such matters at R [125], and acknowledging that in Manebona there was the additional factor of the single reference to detention in the reasons, I do not consider an inference can properly be drawn in this case that the Minister failed to consider the legal consequences of a decision by him to cancel the applicant’s visa, consequences that included being returned to immigration detention before being removed to New Zealand.

112    The Minister was specifically informed that the legal consequences of such a decision included immigration detention on two separate occasions by the briefs he received from the Department. On both occasions he endorsed his signature on the brief. The Minister had been provided with and engaged with the Tribunal’s reasons. The Tribunal reasons twice expressly referred to a legal consequence of visa cancellation being detention and removal, and proceeded on the basis that the applicant at the time of the Tribunal hearing was in immigration detention because his visa had been cancelled. The Minister stated in his reasons (at R [3]) that he had regard to the materials provided to him by the Department. The Minister also accurately described the power he was exercising under s 501BA to cancel the visa (R [7]-[8]).

113    It is apparent from the reasons that the Minister knew that prior to the visa cancellation decision, the applicant was residing in the community. The Minister observed that the applicant had been released from imprisonment and was living in the community (R [62], [64], [83]); that the applicant had met his parole conditions (R [76]); that he was living with his parents in the community (R [104]); that he was living in the house with other family members (R [104], [111], [113], [114]); that he was gainfully employed and supported by his employer (R [78]), [121]; and that the applicant takes part in Church youth group meetings (R [122]).

114    It is apparent from the reasons that the Minister knew that the effect of a decision to cancel the visa was that the applicant would be deported and permanently removed from Australia. The Minister observed that the applicant’s family would rally around him ‘should he remain in Australia’ (R [70]); he assessed the effect of cancellation of the applicant’s visa on minor children in Australia, an issue relevant because cancellation would lead to his deportation and physical absence from their day-to-day lives (R [101]-[108]); he noted that the applicant’s extended family would be emotionally affected if the applicant were to be permanently removed from Australia (R [120]); and he considered the extent of impediments if the applicant were removed to New Zealand (R [126]-[134]).

115    As I have noted, it is true that the Minister in this case did not expressly refer in his reasons to the aspect of the legal consequences of visa termination that involves immigration detention pending removal. However, as the relevant removal was to New Zealand, this is not a case where any issue of indefinite immigration detention or particular circumstances relevant to detention (such as those in Chukwuma) arise. In the absence of any protection visa application, the Minister considered the exercise of his power in circumstances where it was not controversial that the applicant would be moved to immigration detention pending removal to New Zealand in accordance with s 189 and s 198 of the Migration Act. There was no evidence or submission that the detention would be prolonged or indefinite.

116    I am not satisfied in the circumstances that there is a sound basis from which to infer that the Minister failed to appreciate or consider that the legal consequence of a decision to cancel the applicant’s visa would include, as part of a process of removal from the community and removal to New Zealand, a period of immigration detention. Relevantly, these circumstances include the fact that the briefs specifically informed the Minister that immigration detention was part of the overall consequence of a cancellation decision; the Tribunal reasons (with which the Minister otherwise engaged) referred to the legal consequence; and the Minister’s reference to the matter collated at [113] and [114] above plainly anticipate a statutory regime that includes obligations on an officer to take an applicant whose visa is cancelled into immigration detention (s 189) and to remove them from Australia as soon as practicable (s 198).

117    Ground 3 is rejected.

Conclusion

118    As I have upheld the first ground, it is appropriate that a writ of certiorari directed to the respondent issue, quashing the Minister’s decision of 28 January 2026.

119    The applicant sought further relief by way of a writ of habeas corpus requiring the Minister to release the applicant from detention, and an injunction restraining the Minister and any of his officers, delegates, or agents from taking any action relying upon the Minister’s decision of 28 January 2026. I do not consider such further relief is required, in circumstances where there is no suggestion that the Minister or any of those other persons would seek to take any action based upon the decision once it has been set aside.

120    Costs should follow the event. Neither party suggested otherwise. Accordingly, there will be an order that the Minister is to pay the applicant’s costs.

Associate:

Dated:    23 October 2026