Federal Court of Australia

CLMF v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1696

ORDERS

THE COURT ORDERS THAT:

1.    The name of the Respondent be amended to “Assistant Minister for Citizenship, Customs and Multicultural Affairs”.

2.    A writ of certiorari be issued quashing the decision of the Respondent made under s 501A(3) of the Migration Act 1958 (Cth) on 15 January 2025 to set aside the decision of the Administrative Appeals Tribunal dated 6 September 2023 and cancel the Applicant’s Protection (subclass 866) visa (the set aside and cancel decision).

3.    Subject to further order, the Respondent pay the Applicant’s costs of the proceeding as taxed in default of agreement.

4.    Any party seeking an order for costs different to order 3 must, within seven days, provide an outline of submissions (limited to 2 pages) and any affidavit upon which they seek to rely in support of that alternative order.

5.    If any party seeks an order for costs under order 4, the other party may within seven days file any submissions (limited to 2 pages) or affidavit in response.

6.    Any dispute as to costs will be determined on the papers.

THE COURT DECLARES THAT:

A.     The set aside and cancel decision is of no effect.

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

REASONS FOR JUDGMENT

BENNETT J:

Introduction

1    The Applicant is a citizen of South Sudan. He was granted a Protection (subclass 866) visa (the Visa) on 25 January 2024, following a review before the Administrative Appeals Tribunal (the Tribunal) of a decision to refuse the application for that visa under s 501(1) of the Migration Act 1958 (Cth) (the Act). On 15 January 2025, the then Assistant Minister for Citizenship and Multicultural Affairs (the Minister) exercised his personal power under s 501A of the Act to set aside a decision of the Tribunal and cancel the Applicant’s Visa. This was referred to by the Applicant as the “set aside and cancel decision” (the Decision).

2    By his Amended Originating Application, the Applicant initially advanced two grounds of review. Prior to the hearing, the Applicant sought leave to amend the grounds of his application to include an additional two grounds. Leave was not opposed. The four grounds pressed in the hearing were:

1A.    The set aside and cancel decision is affected by jurisdictional error because the respondent’s consideration of the protection of the community did not involve any consideration of the extent to which the cancellation of the applicant’s visa would address the identified risk of the applicant reoffending, such that the respondent failed to form his state of satisfaction as to the national interest reasonably.

1B.    The set aside and cancel decision is affected by jurisdictional error because the respondent’s consideration of the protection of the community did not involve any consideration of the extent to which the cancellation of the applicant’s visa would address the identified risk of the applicant reoffending, such that the respondent’s reasoning on the discretion was legally unreasonable.

1.     The set aside and cancel decision is affected by jurisdictional error because, by reason of the respondent’s erroneous belief that if the applicant’s protection visa were cancelled he could be granted a Bridging R (Class WR) visa (BVR) that included monitoring and curfew conditions:

(a)    the respondent acted on an incorrect understanding of the law; and/or

(b)    the respondent failed to consider the legal and practical consequences of the decision on a correct understanding of the law; and

(c)     the decision was legally unreasonable.

2.    The set aside and cancel decision was legally unreasonable because the Minister’s reasons failed to address the fact that the applicant had been granted a protection visa on 25 January 2024.

3    For the reasons that follow, I have concluded that grounds 1A and 1B ought to be upheld, and the Minister’s Decision set aside.

factual background

4    The Applicant arrived in Australia on a special humanitarian visa in 2008, aged 15, with his two brothers. On 28 November 2018, he pleaded guilty on the second day of his trial in the District Court of South Australia to one count of “Aggravated: dishonestly take property without consent” and one count of “Cause harm – aggravated offence against a Police Officer”. He was sentenced to an aggregate sentence of two years and 10 months imprisonment, with a non-parole period of one year and six months. The Applicant’s special humanitarian visa was cancelled pursuant to s 501(3A) of the Act.

5    On 23 November 2020, the Applicant applied for a Protection (Class XA) visa. On 7 June 2023, a delegate of the Minister refused that application under s 501(1) of the Act.

6    The Applicant sought review before the Tribunal. On 6 September 2023, the Tribunal decided to set aside the delegate’s decision and substitute a decision that the Applicant’s protection visa application not be refused. The Applicant submits that the evidence discloses that after the Tribunal’s decision dated 6 September 2023, the Department of Home Affairs (Department) decided not to seek judicial review of the Tribunal’s decision and not to refer the Applicant’s case to the Minister for consideration of whether to exercise the power in s 501A.

7    On 25 January 2024, a delegate of the Minister decided to grant the Applicant the Visa. A relevant criterion for the grant of the Visa was contained in cl 866.226 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), which simply states that a criterion for the grant of the visa, to be satisfied at the time of decision, is that “[t]he Minister is satisfied that the grant of the visa is in the national interest”.

8    Almost a year later, on 15 January 2025, the Minister decided to set aside the Tribunal’s decision and cancel the Visa under s 501A(3) of the Act. Reasons (R) were given for that decision. The Minister reasonably suspected that the Applicant did not pass the character test, and the Applicant takes no issue with that finding. However, there are other issues that the Applicant raised as disclosing jurisdictional error, and it is to those matters that I now turn.

The statutory framework and general principles

9    This matter concerns the Minister’s decision to set aside the Tribunal’s decision and cancel the Visa under s 501A(3) of the Act. Section 501A relevantly provides:

501A     Refusal or cancellation of visa – setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)     This section applies if:

(a)     a delegate of the Minister; or

(b)     the ART;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or the ART that the person passes the character test and whether or not the delegate or the ART reasonably suspects that the person does not pass the character test.

…

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)     The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)     Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5)     The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

10    It is not contentious that the power in s 501A(3) may only be exercised by the Minister personally (s 501A(5)) and that the rules of natural justice do not apply to decisions under s 501A(3) (s 501A(4)). For the purposes of the Act, the Assistant Minister is the Minister (Farrugia v Minister for Immigration and Multicultural Affairs [2026] FCA 1201 at [13] (Neskovcin J), citing Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 291 at [17] (Gleeson CJ)).

11    The principles relevant to the issues in dispute in this case are relatively uncontroversial. The following propositions informed the submissions before me in the present case:

(1)    In the context of a decision under s 501A of the Act, the discretion enlivened on fulfilment of the statutory preconditions must be exercised by the Minister reasonably, with the state of satisfaction formed on the basis of material to which he or she had regard (KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 (KFTJ Primary) at [14] (Wigney J), and the cases cited therein (albeit stated in the context of s 501BA of the Act)).

(2)    The concept of legal unreasonableness “is not amenable to minute and rigidly-defined categorisation or a precise textual formulary” (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [10] (Allsop CJ)).

(3)    Where reasons are given, “[t]he ‘intelligible justification’ must lie within the reasons the decision-maker gave for the exercise of the power … either the reasons given by the decision-maker demonstrate a justification or they do not” (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] (Allsop CJ, Robertson and Mortimer JJ)). That is so whether the unreasonableness ground relates to the decision generally or the formation of a state of satisfaction (Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45; 315 FCR 435 (SSVJ) at [37] (Perry, Kennett and Shariff JJ), citing KFTJ Primary at [21] (Wigney J)).

(4)    Where it is alleged that a state of satisfaction has not been formed reasonably, the test is not limited to whether the state of satisfaction reached was one at which no rational or logical decision-maker could arrive on the same evidence. Rather, “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” (Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644 at [43] (Gordon J) (emphasis in original), citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] (Crennan and Bell JJ)).

(5)    Importantly, as the Full Court explained in Singh (at [47]):

… If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

12    The oral argument focused mainly upon grounds 1A and 1B, which were added to the Applicant’s case after the Full Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ [2026] FCAFC 52; 316 FCR 273 (Perry, Kennett and Shariff JJ) (KFTJ FC). It is these grounds which I consider first.

Grounds 1A and 1B

13    Grounds 1A and 1B are set out above. They both focused upon the Minister’s consideration of the protection of the community. It is said that in considering the protection of the community, the Minister did not consider the extent to which cancelling the Visa would address the identified risk of the Applicant reoffending. This is said to mean that the Minister failed to form his state of satisfaction as to the national interest reasonably (ground 1A) and that the reasoning on the discretion was legally unreasonable (ground 1B). Because of the significant overlap in the analysis, it is convenient to consider both grounds together.

The Applicant’s argument on grounds 1A and 1B

14    The Applicant argues that the Minister said that he had given “heavy weight” to the protection of the community. The Applicant places particular emphasis on the following comments by the Minister:

(1)    At R[104], that “I will separately consider the type of visa on which [the Applicant] should reside and conditions to be imposed on that visa, following further advice from the Department”; and

(2)    At R[108], that “I have not speculated on the likelihood of a Minister (including myself) intervening under any of the provisions mentioned above, or the consequences for [the Applicant] following any such intervention”. It is said that “the provisions mentioned above” include, relevantly, provisions the effect of which was that the only visa the Applicant could apply for was a Bridging R (Class WR) visa (BVR), being a visa he could only apply for in response to an invitation (referring to R[107]).

15    The Applicant submits that the Minister’s reasons should be construed on the basis that a delegate would decide whether to grant a BVR to the Applicant, and that the Minister would not exercise direct control over that decision. It is said to follow that “the Minister had no basis for an assumption that the respondent would be subject to visa conditions that would serve to protect the community” (citing KFTJ FC at [46] (Perry, Kennett and Shariff JJ)). In addition, it was said by the Applicant that whatever subjective understanding the Minister might have had as to the likelihood of the Applicant being granted a BVR, by his reasoning at R[108], “the Minister expressly declined to take any view about the potential for the respondent to be permitted to apply for a visa by a later decision, what class of visa that might be, or the prospects of such an application succeeding” (citing KFTJ FC at [48] (Perry, Kennett and Shariff JJ)).

16    In oral argument, the Applicant accepted that R[108], considered alone, addressed intervention enabling an application and did not expressly address the distinct power to grant a BVR without application. The Applicant submitted that the latter issue was resolved by reading R[57] – [62], R[104], R[107] – [108] and the referral to the delegate together.

17    The Applicant relies on the Full Court decision in KFTJ FC, and submits that in that case the Full Court said that it was irrelevant whether the Minister had a subjective understanding that the applicant was likely to be granted a BVR, because the existence or otherwise of a rational foundation for a decision-maker’s reasoning must lie within the reasons that the decision-maker gave, rather than being “constructed by a court after the event, relying on matters to which the decision-maker could or might have had regard” (KFTJ FC at [47] (Perry, Kennett and Shariff JJ)).

18    In relation to ground 1B, it is said that the same vice infected the Minister’s reasoning in relation to the discretion, including because the Minister said that he gave “due weight” in the exercise of his discretion to the matters discussed in relation to the national interest (which included and incorporated the matters identified above) (R[74]).

The Respondent’s argument on grounds 1A and 1B

19    The Respondent argues that each case turns on its own facts (SSVJ at [36] (Perry, Kennett and Shariff JJ)) and there is little assistance to be drawn by comparing decisions. The Respondent submits that the core of the issue is the correct characterisation of the Minister’s reasons and that, despite some superficial similarities with KFTJ FC, the reasoning in this case does not give rise to any irrationality or illogicality. Three primary reasons were advanced in support of that submission:

(1)    First, the Applicant’s argument was said to rest on an underlying misconception that the cancellation of his Visa would make no difference to the protection of the community unless he were subject to restrictions on his liberty. It is said that the conditions attaching to a BVR are not the only basis upon which a decision-maker could find that cancellation is in the national interest. Even if a BVR were subject to no protective conditions whatsoever, the object of community protection could still be served by cancellation of a permanent visa and replacement by a BVR. That is said to be because “cancellation of a non-citizen’s visa in such circumstances can ensure that the non-citizen remains liable to be removed from Australia, even if their removal is not reasonably practicable at the time of the decision” (ZTBL v Minister for Immigration and Citizenship [2026] FCAFC 48; 316 FCR 94 (ZTBL) at [89] (Markovic, Hespe and Needham JJ); XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; 311 FCR 539 (XKTK) at [51] (Wheelahan J), [113] (Stewart and Needham JJ)).

(2)    Second, this case is said to be different from KFTJ FC, because in the present circumstances, the Minister examined in some detail the circumstances in respect of which the grant of a BVR might arise (R[57] – [62]). The Minister’s reasoning rests, in part, on the idea that the BVR scheme allowed for the possibility that conditions could be imposed on the Applicant. In addition, the Minister referred to the ability to grant a visa without an application (by reference to regs 2.25AA and 2.25AB of the Regulations).

(3)    Third, the Respondent submits that the Minister did not decline to speculate about the Applicant being granted a BVR. There is a distinction between a non-citizen being unilaterally granted a visa (ie without an application for the visa by the non-citizen) and the non-citizen applying for a visa. The Minister clearly had in mind that there would be consideration given to the Applicant being granted a BVR. The Respondent submits that issue is discussed in some detail in the Minister’s reasons and was also the subject of a decision by the Minister in the Ministerial submission (ie to refer to a delegate).

20    The Respondent argues that the Minister contemplated the Applicant being granted a BVR and that, reading the reasons together with the Ministerial submission, the Minister considered it most likely that the BVR would be granted by a delegate and therefore subject to a range of conditions as imposed by the delegate. A premise of the Minister’s decision was said to be that the cancellation of the Visa would allow the Minister (or his Department) to impose restrictions upon the Applicant’s liberty through the BVR scheme. It is said that the Minister had a basis for an assumption that the Applicant would be subject to visa conditions that would serve to protect the Australian community. That is said to be true irrespective of whether the Minister or a delegate decided which conditions to impose upon the visa.

21    On the Respondent’s construction, R[104] did not reserve the anterior question of whether any BVR would probably be granted. Instead, it reserved the determination of the precise visa and the conditions to which it would be subject.

22    The Respondent argues that, in that context, the reasoning at R[107] – [108] is explicable. It argues that all the Minister was doing in those passages was referring to the Applicant’s ability to apply for a visa, and whether any Minister might lift statutory bars that prevent the Applicant from making valid applications for new visas. Put another way, the Respondent submits that the Minister was not declining to speculate about the possibility that he, or a BVR delegate, might grant the Applicant a BVR without the Applicant applying for that type of visa.

Analysis

23    It is not controversial that all cases turn on their own facts, and so the analysis in this case must turn upon a proper review of the Minister’s reasons. In doing so, I accept that it is appropriate to read the reasons as a whole, and without an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)). Likewise, I accept that it is not appropriate to simply identify similar wording used in one decision in the analysis of a subsequent decision. Each case turns on its own facts and requires a careful analysis of the issues in their particular factual context.

24    I accept that the Applicant is wrong to contend that cancellation of his Visa would make no difference to the protection of the community unless he were subject to conditions that restrict his liberty. As has been explained in detail in XKTK at [51] (Wheelahan J) and [113] (Stewart and Needham JJ) and endorsed in ZTBL at [89] (Markovic, Hespe and Needham JJ), the BVR is a visa which is liable to swift cancellation and consequently, removal - even where removal is not reasonably practicable at the time of the decision. That fact itself supports the contention that a BVR can rationally be in the national interest. That is reinforced by the availability of conditions, whether or not they restrict the liberty of the visa holder.

25    Nonetheless, the complaint at the core of grounds 1A and 1B is not contingent upon the notion that there is no distinction between a BVR and a protection visa: it turns on an analysis of the Minister’s reasoning. In developing their submissions, the parties each referred extensively to SSVJ and KFTJ FC.

26    In both SSVJ and KFTJ FC, the Full Court considered a person in respect of whom Australia had non-refoulement obligations and who was a non-citizen that formed part of the group of persons identified by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ), meaning that cancellation of their visa would not result in their detention or removal. In both cases, the central provision in question was s 501BA of the Act, which confers power on the Minister, acting personally, to override a decision of the Tribunal to revoke a visa cancellation and substitute a decision to cancel the visa. In both cases, it was accepted that there was no present prospect of the applicant being removed to a third country.

27    In SSVJ, the Full Court held that the Minister’s reasoning did not lack an intelligible justification, whereas in KFTJ FC the Full Court upheld the primary judge’s finding that the Minister’s conclusion that protection of the community weighed heavily towards cancellation being in the national interest lacked a rational foundation and found that the decision was vitiated in consequence. It is appropriate to make a number of high-level comments about each case:

(1)    In SSVJ, the primary judge held that the Minister’s reasons rested on an unstated and unexplained assumption that the visa cancellation would protect the community even though the applicant would remain at large. This was said to mean that the decision lacked an intelligible justification. The Full Court did not agree, identifying a rational foundation to the Minister’s decision that cancelling the visa would provide a measure of community protection, even while the Minister countenanced the making of a future decision about the applicant’s visa, noting that the future decision would take into account the applicant’s criminal record, and that there were a limited class of visas for which the applicant could apply. The Minister in that case identified it was likely a visa would be granted of a kind to which conditions could attach and that the Minister could exercise control over those conditions (SSVJ at [40] (Perry, Kennett and Shariff JJ)).

(2)    In KFTJ FC, the respondent’s visa was cancelled pursuant to s 501(3A) of the Act and the delegate decided not to revoke that cancellation. The Tribunal set aside the delegate’s decision and substituted a decision revoking the cancellation. The Minister then exercised his personal power under s 501BA(2) of the Act and cancelled the respondent’s visa. In addressing the legal consequences of the decision to cancel the respondent’s visa, the Minister used language in his reasons that was almost identical to that used in SSVJ. He also added an express disclaimer that he had not “speculated on the likelihood of a Minister (including myself) intervening under any of the provisions mentioned above, or the consequences for [the respondent] following any such intervention”. There was also evidence that the Minister had delegated the question of whether to grant a BVR to the respondent in that case. The Full Court agreed with the primary judge’s conclusion that there was a “clear and significant logical gap” in the Minister’s reasoning (KFTJ Primary at [70] (Wigney J), cited in KFTJ FC at [27] (Perry, Kennett and Shariff JJ)).

28    The Full Court in KFTJ FC identified a number of factors that were materially different from the analysis is SSVJ:

(1)    First, in both cases, the Court accepted that the relevant paragraphs concluding that “protection of the community” weighed in support of cancelling the relevant respondent’s visa did not, by themselves, explain the causal link between cancellation and community protection with respect to members of the NZYQ cohort. In SSVJ, the Court found that link to be supplied (in part) by [74] – [75] of the Minister’s reasons in that case. The Minister expressed an understanding that there was at least one class of visa that could be granted to the respondent, which could be subject to conditions, and this was a matter that he would consider subsequently. The precise details of the conditions were not necessary (SSVJ at [39] (Perry, Kennett and Shariff JJ)). In KFTJ FC, the Full Court held that the almost equivalent paragraph in R[84] did not perform the same function when read together with R[86] and the decision to refer the BVR question to a delegate (KFTJ FC at [46] (Perry, Kennett and Shariff JJ)). It followed that the Minister was not proceeding on the basis that he would decide what visa should be issued and what the conditions should be.

(2)    Second, in KFTJ FC, the Minister included an express disclaimer by which he disavowed having “speculated on the likelihood of a Minister (including myself) intervening under any of the provisions mentioned above, or the consequences” (KFTJ FC at [48] (Perry, Kennett and Shariff JJ)). The “provisions” were understood in that instance as a reference to the provisions of the Act and Regulations, and the relevant paragraph was understood to mean that the Minister declined to take any view about the potential for the respondent to be permitted to apply for a visa or what class of visa that might be (KFTJ FC at [48] (Perry, Kennett and Shariff JJ)). In SSVJ, by contrast, there was no such express refusal to speculate – which permitted the natural conclusion that a temporary visa capable of being subject to conditions was understood by the Minister to follow.

29    Whatever the similarities and differences between them, both cases emphasise that each case turns on its own particular facts and circumstances. No two cases are the same and even apparent similarities in language in different Ministerial decisions do not denote that the same analysis of reasoning is appropriate.

30    Having regard to that exhortation, I turn to consider the Minister’s reasons in the present case.

The Minister’s reasons in the present case

31    The Minister’s reasons record that the Applicant was owed non-refoulement obligations and that there was no real prospect of his removal for the reasonably foreseeable future. As such, the Minister noted that if the Applicant’s Visa were cancelled, he would not be subject to detention pending removal.

32    The Minister considered the protection of the community and the expectations of the community, concluding that cancelling the Applicant’s Visa was in the national interest. In exercising his discretion, he said that he gave “due weight” to the matters discussed in relation to the national interest, and that he gave the protection of the Australian community greater weight than any other matter in relation to the discretion. It is not in dispute that the Minister took into account a range of matters, including:

(1)    the Applicant’s ties to Australia;

(2)    the impact on the Applicant’s immediate family in Australia;

(3)    the best interests of minor children;

(4)    the legal consequences of the decision;

(5)    impediments to the Applicant establishing himself and maintaining basic living standards in South Sudan (even though the Minister had found that the Applicant could not be removed to South Sudan for the reasonably foreseeable future);

(6)    the fact that the Applicant was providing financial support to his family in South Sudan; and

(7)    the fact that cancellation of the Applicant’s Visa “may have some impact upon his ability to be or to remain employed whilst he remains an unlawful non-citizen”.

33    The risk to the Australian community was assessed by reference to available information about matters that might have contributed to the Applicant’s past conduct, remorse, rehabilitation and conduct in custody (R[31] – [45]). The Minister did not accept that the risk posed by the Applicant to the community was “acceptable” on account of a comparison to the situation of an Australian citizen (R[47]) or that his level of risk was “a tolerable one by reference to his personal circumstances in coming to Australia” (R[49]).

34    The Minister noted the earlier decision of a delegate who found, for the purposes of s 36(2C)(b)(ii) of the Act, that the Applicant was not a danger to the Australian community. While the Minister agreed that there were various protective factors present in the Applicant’s case, he noted that it was open to him to draw his own findings of fact (R[51]), particularly given the different statutory test being applied. On balance, the Minister considered there to be a low, but not negligible, likelihood that the Applicant would reoffend, noting that if he reoffended, it would likely result in harm to members of the community. It was found that the harm that could be caused was so serious that any risk of it being repeated was unacceptable (R[55]).

35    The Minister then noted that the Applicant was the subject of a protection finding so that even if a cancellation decision were made under s 501A(3), he would not be taken into detention. Instead, he would continue to reside in the community either as an unlawful non-citizen or the holder of a temporary bridging visa (R[56]). The Minister specifically identified his ability to grant a BVR and that conditions could be attached to such a visa. In addition, the Minister noted that the imposition of conditions on a BVR was governed by cl 070.612A in Sch 2 to the Regulations. At the time, that clause required the Minister to impose certain conditions where certain criteria were met, including where the Minister was satisfied:

… on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence…

36    Further, the Minister was required to be “satisfied on the balance of probabilities” that the imposition of the condition was “reasonably necessary” and “reasonably appropriate and adapted” for the purpose of protecting any part of the Australian community from serious harm by addressing the substantial risk. The Minister provided two examples of possible conditions, being “requiring [the Applicant] to wear a monitoring device and / or adhere to a curfew” (R[58]). The relevance of these conditions was not otherwise referred to in the reasons.

37    The Minister said that he proceeded “per the Regulations currently in force which provide the appropriate legal mechanism to attach such conditions to any such BVR granted to [the Applicant]” (R[60]). After considering various provisions of the Act, including those which are triggered by a failure to comply with conditions relating to BVRs, the Minister said that (at R[62]):

In light of these provisions constituting the BVR scheme, I find that the cancellation of [the Applicant’s] visa would allow me to impose restrictions upon his liberty. Whilst those restrictions are not to the same extent as criminal or immigration detention, I nonetheless find that they would afford the Australian community a greater measure of protection than if [the Applicant] was to be present in the community without such conditions upon his visa (being a permanent visa allowing him to remain in Australia indefinitely).

38    The Minister went on to consider the expectations of the Australian community (R[64] – [68]) and concluded that the cancellation of the Applicant’s Visa was in the national interest (R[72]).

39    The Minister then considered the operation of his discretion, considering the same issues that he had considered in connection with his analysis of the national interest (this included the expectations of the Australian community and risk to the community). The additional discretionary factors focused on matters personal to the Applicant including his ties to Australia, impact on his immediate family, and areas of positive contribution to the Australian community (R[83]).

40    The Minister again turned his mind to the legal consequences of the decision, noting that “under s 198 unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention under s 189, provided that removal is practicable in the reasonably foreseeable future” (R[94]).

41    The Minister explained his understanding that the effect of the protection finding made about the Applicant meant that his removal to South Sudan was neither required nor authorised. He therefore considered it to be highly unlikely that the decision to cancel the Visa would result in his removal to South Sudan in breach of any international non-refoulement obligations (R[101]).

42    The Minister expressed an awareness that there would be significant restrictions on the Applicant’s ability to apply for another visa because of the cancellation decision under s 501A(3) and that the Applicant could not, without leaving the migration zone, apply for any visa other than a BVR (as prescribed by reg 2.12AA of the Regulations), for which he could apply only in response to an invitation. This consideration was given “significant weight”. The Minister then went on to say (at R[108]):

In making the present decision, I have not speculated on the likelihood of a Minister (including myself) intervening under any of the provisions mentioned above, or the consequences for [the Applicant] following any such intervention.

43    The Department’s submission to the Minister recorded that the Minister “noted” that if he decided to cancel the Applicant’s Visa, it would then be “necessary to consider further steps, which may include granting a [BVR] visa to [the Applicant]”.

44    The Minister circled the box “refer to BVR delegate”. Just over an hour after the Visa was cancelled, the Applicant was granted a BVR, the conditions of which were subsequently varied. Strangely, the Applicant was only notified of the cancellation of his Visa after he was notified of the grant of his BVR. That anomaly is not relevant to the present analysis.

Consideration of the Minister’s reasons

45    It is appropriate to make a number of observations arising from my analysis of the Minister’s reasons:

(1)    First: I am satisfied that, reading the reasons together with the Minister’s notations on the Ministerial submission (KFTJ FC at [46] (Perry, Kennett and Shariff JJ)), the reasons are to be understood on the basis that a decision about a BVR would be made by a delegate, and not by the Minister.

(2)    Second: All of the matters that informed the Minister’s analysis for the purposes of the national interest were expressly incorporated into his consideration of the exercise of his discretion (R[74]).

(3)    Third: The Minister identified that a BVR permits conditions. Read fairly and as a whole, I am satisfied that the Minister’s reasons make clear that it was the fact that conditions could be imposed which he considered to be protective of the community, and that the references to restrictions of liberty were by way of example only. In addition, the existence of offences for the failure to comply with conditions relating to BVRs (referred to at R[61]) was particularly relied upon as supporting the proposition that compliance with conditions would be enforced by serious consequences.

(4)    Fourth: The fact that the BVR also permits easier removal of the Applicant in the future was not a matter that was considered by the Minister, albeit he clearly accepted that a permanent visa should not be held by a person with serious character concerns (see in particular R[65]). However, the Minister’s concern in the BVR concept was focused upon the conditions it could permit.

(5)    Fifth: The reference at R[108] to the Minister declining to speculate about the likelihood of intervention by the Minister under “any of the provisions mentioned above” is best understood as a reference to the provisions referred to in the immediately preceding paragraph (R[107]) and not to all of the provisions of the Act referred to throughout the reasons. That is, the Minister declined to speculate about whether a Minister might “lift the bar” and permit a visa application while the person is within the migration zone, or whether the Applicant would receive an invitation to apply for a BVR. That is because both provisions are implicitly or explicitly referred to in the paragraph immediately preceding R[108].

46    The final proposition concerning the correct characterisation of the Minister declining to speculate is a matter of some importance. It is appropriate to set out the relevant paragraphs:

[107]    I am also aware that if a cancellation decision is made under s 501A(3) in relation to [the Applicant’s] protection visa, there would be significant restrictions on [the Applicant’s] ability to apply for another visa. In particular, I understand that [the Applicant] would be prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s 48B, that s 48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s 501E of the Act, which would apply to [the Applicant] as a result of a cancellation decision under s 501A(3). This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation. I have given this consideration significant weight.

[108]    In making the present decision, I have not speculated on the likelihood of a Minister (including myself) intervening under any of the provisions mentioned above, or the consequences for [the Applicant] following any such intervention.

47    The Respondent argues in relation to R[108] that a distinction must be drawn between declining to speculate about whether the Applicant would be invited to apply for a BVR and the potential grant of a BVR for which no invitation is required. The Respondent in this respect refers to the ability of the Minister to grant a BVR under “provisions such as reg 2.25AA and 2.25AB” of the Regulations.

48    At the relevant time, reg 2.25AA provided:

Grant of Bridging R (Class WR) visa without application

(1)    This regulation applies to an eligible non-citizen if:

(a)    the eligible non-citizen is an unlawful non-citizen; and

(b)    section 195A of the Act is not available to the Minister in relation to the grant of a visa to the eligible non-citizen.

(2)    Despite anything in Schedule 1 and Divisions 070.2 to 070.4 of Part 070 of Schedule 2, the Minister may grant the eligible non-citizen a Bridging R (Class WR) visa if the Minister is satisfied that, at the time of decision, the eligible non-citizen’s removal from Australia is not reasonably practicable.

49    Similarly, reg 2.25AB provided:

Grant of Bridging R (Class WR) visas to certain non-citizens without application

(1)    This regulation applies to a non-citizen who is an eligible non-citizen under subregulation 2.20(18) or (19).

(2)    Despite anything in Schedule 1 and Divisions 070.2 to 070.4 of Part 070 of Schedule 2, the Minister may grant the non-citizen a Bridging R (Class WR) visa if the Minister is satisfied that, at the time of decision, the non-citizen does not hold a substantive visa, a criminal justice visa or an enforcement visa.

50    It is clear therefore that there are two pathways to the granting of a BVR, one which requires an invitation and one which can be granted on the Minister’s own motion. In the reasons at R[107] and R[108], the Minister declines to speculate about the former and is silent as to the latter.

51    The question is therefore not whether R[108] expressly disclaimed a view about an own-motion grant. The real issue is whether the reasons elsewhere disclose that the Minister proceeded on the basis that a BVR being granted was likely or probable.

52    The Applicant submits that the Minister did not express any view or assumption as to the likelihood of a BVR being granted.

53    On the one hand, the Minister recognised the practical reality that he could grant a BVR to the Applicant, and that he could attach conditions to the grant of such a visa. This was a critical part of his reasoning in relation to both the national interest and the discretion. Read on their own, R[57] – [62]) identify the way in which the BVR scheme could provide community protection (through the imposition of a temporary visa with conditions). However, they do not, in terms, state the Minister’s views about the probability that a BVR would be granted.

54    At R[62], the Minister noted that a BVR would allow him to impose conditions. However, that does no more than describe the legal opportunity created by cancelling the Visa. It does not necessarily convey that the Minister had concluded that the own-motion power would probably or likely be exercised.

55    Without more, it might be that the Minister’s reasons, by their silence as to any other alternative, suggest or imply that this was the course the Minister proposed to adopt. That was in many respects the approach adopted in SSVJ.

56    The difficulty with this analysis is found in R[104] in combination with the decision to delegate the BVR decision. At R[104], the Minister said “I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department” (emphasis added). At the same time, he decided to delegate that very decision.

57    It follows that the statements about the next steps that the Minister expressly made were:

(1)    There would be a separate, subsequent decision about the type of visa on which the Applicant should reside; and

(2)    The separate decision would, at least at first, be undertaken by someone other than the Minister.

58    The decision as to the type of visa upon which the Applicant would reside must have been thought to be a subsequent decision, because the Minister identified that the decision would be made “following further advice from the Department”.

59    Put another way, the implication which the Respondent seeks to draw from R[56]–[63] must be assessed in light of the express statement at R[104], read together with the Minister’s decision to refer the BVR question to a delegate. Those matters prevent the Court from inferring from the discussion of the available powers that the Minister regarded the granting of a BVR as likely or probable.

60    The Respondent is correct to submit that the reasons in the case are different from those in KFTJ FC and SSVJ. Key differences in this case are that there is much greater detail about the BVR process and a much clearer and more forthright identification of the powers to grant a BVR and the conditions that follow from such a grant. Further, the disclaimer in this case is much more limited than the disclaimer in KFTJ FC and does not apply to precisely the kind of visa which the Minister could be seen to have had in mind at R[56] – [63].

61    The Minister recognised that the Applicant would not be taken into detention and that he would continue to reside in the community “whether as an unlawful non-citizen or as the holder of a temporary bridging visa” (R[56]). The Minister then specifically went on to note his power to issue an own motion BVR to the Applicant under regs 2.25AA and 2.25AB of the Regulations, and then to identify the provisions that contained Commonwealth offences for the failure to comply with conditions relating to BVRs (ie s 76B of the Act and following).

62    These are matters by which the Minister identified the legal framework, including that the framework would operate to permit him to impose conditions.

63    However, the notion that the Minister had decided that he would grant a BVR, or that it was probable or likely that someone would grant a BVR, is missing and must, on the Respondent’s case, be supplied by inference (principally relying on R[56] – [63]).

64    Set against that is the express statement to the effect that there had not yet been a decision, and that a decision would not be made until a later point, following further advice. Together with the delegation, it is clear that the consideration as to the type of visa had not concluded. It is significant that it was not only the nature of the conditions that was to be the subject of further advice, but it also included advice about “the type of visa” on which the Applicant should reside. That statement, taken together with the fact that the decision was itself delegated is sufficient to lead to the conclusion that the Minister did not, ultimately, decide it was likely that a BVR would be granted.

65    The fact that the latter parts of the reasons appear in the discretion section does not alter the above analysis. The reasons must be read as a whole, and not on a paragraph-by-paragraph basis. The tension that is disclosed by the holistic analysis in this matter is a substantial part of the problem. It is not appropriate to seek to supply a logical basis for a decision from assumptions about what the Minister must have meant. The reasons themselves must disclose the logical basis for the decision (KFTJ FC at [47] (Perry, Kennett and Shariff JJ); SSVJ at [37] (Perry, Kennett and Shariff JJ)).

66    Even though it might be possible to quarantine some parts of the reasons and identify a legitimate pathway of reasoning within that part, to do so would be to inappropriately isolate aspects of the analysis in a manner that authority warns against (SSVJ at [27] (Perry, Kennett and Shariff JJ)). For example, when considered in isolation, the analysis of the national interest might be internally consistent. However, that analysis cannot occur in a vacuum which ignores the simultaneous decision to delegate the decision as to whether to grant a BVR to the Applicant, taken together with the simultaneous notation in the reasons that there will be further advice and consideration of that very issue.

Conclusions on grounds 1A and 1B

67    These matters, taken together, undermine the logic of the analysis undertaken in the section of the reasons that is concerned with the national interest. The Respondent argues that R[57] – [62] demonstrate that the Minister regarded the granting of a BVR as likely or probable. Those paragraphs identify the existence of the power to grant a BVR and the fact that conditions could attach if the BVR were granted. They do not identify that the Minister (or any Minister) would be likely to exercise those powers. It might be, as in SSVJ, that the identification of the power would be sufficient to provide a logical basis for the Minister’s reasoning, if it were not for the subsequent notation that the question would be considered separately following advice, while at the same time, delegating that very decision.

68    It is true that the reasons include further analysis of the circumstances in which the grant of a BVR might arise, including the potential for the imposition of conditions. The Respondent submits in the present case that the Minister “considered it most likely that the BVR would be granted by a delegate and therefore subject to a range of conditions as imposed by that delegate”. Of course, such a pathway of reasoning might have been available, but if that were the approach that the Minister adopted, then it would be necessary for him to explain why that was so. The reasons do not disclose that step and it is not appropriate to supply it from supposition.

69    Similarly, it is said that the Minister had a basis for an assumption that the Applicant would be subject to visa conditions that would serve to protect the Australian community, whether or not he or a delegate imposed them. That is said to be because the mandatory conditions on a BVR place significant burdens on the visa holder which would operate to provide protection to the community. However, that analysis depends on the anterior step that the Minister can be seen, from the reasons, to have concluded that a BVR would (or at least would likely) be granted. The submissions urging such an approach call for certain parts of the reasons to be read down or ignored in a manner that I consider to be impermissible.

70    These failures mean that the Minister’s purported consideration of the national interest lacked reasonableness in the sense that the protection of the Australian community was a critical plank of that reasoning and the role or otherwise of a BVR in that analysis was not logically or coherently set out. It follows that the Minister did not reasonably consider the extent to which the cancellation of the Applicant’s Visa would address the identified risk of the Applicant reoffending. Ground 1A must therefore be upheld.

71    The closely aligned ground 1B looks to the reasoning in relation to the discretion, arguing that the Minister’s consideration of the discretion gave “due weight” to the matters discussed in relation to the national interest. The same vice in the Minister’s analysis the subject of ground 1A infects that of ground 1B: the same reasoning was expressly carried into the exercise of the discretion by R[74]. The absence of an intelligible connection between cancellation and the asserted measure of community protection therefore affected not only the national interest satisfaction but also the exercise of the discretion. Ground 1B is established.

72    Accordingly, grounds 1A and 1B will be upheld.

Grounds 1 and 2

73    Grounds 1 and 2 were put on the basis that they were alternatives to grounds 1A and 1B. It is nonetheless appropriate that I briefly explain my conclusions about them.

Ground 1

74    Ground one asserts that the Minister’s conclusion on the question of risk to the community was legally unreasonable because he proceeded on the erroneous belief that a BVR could include monitoring and curfew conditions. There is a tension between this ground (which is premised on the proposition that the Minister assumed that a BVR would be issued) and grounds 1A and 1B (which are premised on the proposition that the Minister had not considered a BVR was likely or probable and which I have analysed above). Similarly, the Respondent’s submissions proceeded on the basis that:

… it is plain that the Minister’s reasons depended upon (a) the Minister exercising power under reg 2.25AA or 2.25AB of the Regulations to grant the applicant a BVR; and (b) the Minister’s delegate being satisfied of the matters set out in cl 070.612A in relation to those conditions; (c) a decision being made to impose particular, individual, conditions.

None of these matters were direct and immediate consequences of the Minister’s decision. Rather, as the Minister noted, he (including a delegate) would “separately consider the type of visa on which [the applicant] should reside and conditions to be imposed on that visa, following further advice from the Department”.

75    It is of course open to parties to put alternative submissions in relation to different grounds, and it was on that basis that both parties proceeded.

76    In relation to ground 1, I accept the Respondent’s submission that the references to BVR conditions were general only.

77    Because I am not satisfied that the reasons disclose a conclusion that a BVR would probably be granted, the Applicant has not established that the Minister’s reasoning proceeded upon an assumption that the monitoring or curfew conditions would in fact be imposed. Ground 1, which was advanced on that alternative premise, is therefore not established.

Ground 2

78    Ground 2 asserts that the Decision was legally unreasonable because the Minister’s reasons failed to address the fact that the Applicant had been granted a protection visa on 25 January 2024. This was referred to as an inconsistency by the Applicant, and it is said to be a form of irrationality for the Minister to reach a different conclusion without “grappling with” or “confronting” the different decision.

79    The statutory scheme contemplates individual and personal consideration by the Minister. The decisions in question are, of their nature, evaluative. The Minister has broad decisional freedom to determine whether cancellation of a visa is in the national interest (Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6; 315 FCR 159 at [33] (Charlesworth, Kyrou and Neskovcin JJ) and the cases cited therein).

80    The Minister recorded the fact that the Applicant had been granted a Visa by the delegate (R[7]). To grant the Visa, the decision maker in that instance must have been satisfied of the criterion that doing so was in the national interest.

81    It is necessary to consider the decision-making pathway actually adopted by the Minister, rather than to simply compare the Minister’s decision with another decision made by another person at another time under a different statutory provision. Despite the overlap in facts and the nature of the issues under consideration, to require the same outcome, or an explanation about why there is a different outcome, in the circumstances misunderstands the Minister’s task: he must undertake his task without being bound by a previous conclusion. Moreover, given the effluxion of time, and the nature of the Minister’s task, I do not consider that the differential outcome requires separate explanation. It follows that no error was disclosed by ground 2.

conclusion

82    Because grounds 1A and 1B have been upheld, it is necessary to make orders giving effect to that conclusion. It is appropriate to make an order in the nature of a writ of certiorari, quashing the Minister’s decision to set aside the Tribunal’s decision and to cancel the Visa.

83    The Applicant seeks a declaration that the “set aside and cancel decision” is of no effect. Given my conclusions, it is appropriate to make such an order.

84    The Minister, as the unsuccessful party, should pay the Applicant’s costs, subject to any contrary application. It is appropriate to change the name of the Respondent to reflect the current title, and so an order to this effect will also be made.

Associate:     

Dated:    11 November 2026