Federal Court of Australia

HIU26 v Minister for Immigration and Citizenship [2026] FCA 1711

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant is to pay the costs of the respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The applicant is a citizen of Iran who arrived in Australia on 27 June 2013 as the holder of a Class XB Subclass 200 Refugee visa. On 18 October 2021, the applicant’s visa was mandatorily cancelled by a delegate of the respondent (Minister) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) as the applicant was then serving an effective sentence of imprisonment of 8 years and 9 months for two offences relating to the importation and supply of methamphetamine.

2    On 5 September 2024, a delegate of the Minister declined a request by the applicant to revoke the mandatory cancellation decision.

3    On 29 November 2024, however, the Administrative Review Tribunal set aside the non-revocation decision and the applicant’s visa was reinstated (Tribunal’s decision).

4    On 20 May 2026, after giving notice of an intention to set aside the Tribunal’s decision, the Minster exercised the discretion pursuant to s 501BA(2) of the Act to cancel the applicant’s reinstated visa (Minister’s decision). In exercising his discretion, after being satisfied that it was in the national interest to cancel the applicant’s visa, the Minister acknowledged that some factors weighed against cancellation of the applicant’s visa. The Minister, however, gave the highest priority to the safety of the Australian community and the expectations of the community, given the very serious nature of the offences committed by the applicant. The Minister concluded that the Australian community could be exposed to serious harm if the applicant reoffended in a similar fashion and he could not rule out the possibility of further criminal conduct by the applicant.

5    The two central issues to be determined on this application for review of the Minister’s decision are first, whether the Minister’s assessment of the best interests of the child of the applicant’s partner was affected by illogicality, irrationality and/or legal unreasonableness, and second, whether the Minister’s decision was legally unreasonable because the Minister did not “rationally account for the significance of the Applicant’s actual conduct in the community” in the 537-day period between the Tribunal’s decision and the Minster’s decision. The applicant also contends that there is a temporal limitation on the period in which the Minister can exercise the discretion in s 501BA(2) of the Act but accepts that, for present purposes, that proposition is precluded by binding Full Court authority.

6    For the reasons that follow, I have concluded that the applicant has not established any ground of review, and accordingly the application for review must be dismissed.

B.    Ground 1: Best interests of the applicant’s partner’s child

7    The Minister considered the best interests of five minor children in his statement of reasons (SR) at [93] to [117].

8    The minor children comprised two biological daughters of the applicant, Cali, who was the daughter of the applicant’s partner, and two goddaughters of the applicant. The Minister found that it was in the best interests of each of the minor children that the applicant’s visa not be cancelled. More specifically, the Minister found that he gave this consideration “significant weight” against visa cancellation for the applicant’s biological daughters (at SR [104]), “moderate weight” against visa cancellation for Cali (at SR [112]), and “only some weight” against visa cancellation for the applicant’s goddaughters (at SR [117]). The Minister ultimately concluded at SR [117]:

I have found that the best interests of [the applicant’s] minor children weigh significantly against cancellation of [the applicant's] visa. I have found that the best interests of the other minor children in [the applicant’s] life weigh less significantly against visa cancellation.

9    The Minister addressed the best interests of Cali at SR [105] to [112].

10    The applicant’s challenge to the rationality of the Minister’s reasoning with respect to Cali is principally directed at the following findings made by the Minister at SR [112]:

I find that it is Cali’s best interests that I do not cancel [the applicant’s] visa. However, I note that both of Cali’s natural parents are equally responsible for Cali’s well-being. As such, I have given this consideration moderate weight against visa cancellation.

11    The applicant contends that giving this consideration only moderate weight was irrational. That is because he alleges that this degree of weight proceeded on a finding that Cali’s natural mother and father were equally responsible for Cali’s well-being. He contends that this finding was not supported by the evidence. Rather, he submits that the Minister’s summary of the natural father’s involvement with Cali was limited to “frequent telephone calls and occasional short stays”, whereas Attachment S to the SR identified Cali’s natural mother as her primary caregiver. Consequently, the applicant submits that the Minister’s decision was illogical, irrational and/or legally unreasonable and therefore infected by jurisdictional error.

12    I do not accept the applicant’s contention that the Minister failed rationally to engage with the actual substance of the evidence and reached a conclusion lacking a rational or probative foundation in discounting the weight to be given to the best interests of Cali.

13    I accept that there is a degree of infelicity in the manner in which the Minister has expressed the findings at SR [112]. I do not accept, however, that the Minister’s conclusion that Cali’s best interests provide only moderate weight against cancellation is based on any finding that Cali’s natural parents were equally responsible, as between themselves, for Cali’s wellbeing.

14    In the first sentence of the paragraph the Minister finds that it is in Cali’s best interests that the applicant’s visa not be cancelled. The second sentence, by the use of the conjunction “[h]owever”, focuses on a factor mitigating against the significance of that finding. The third sentence, by the use of the words “[a]s such”, draws a direct connection between the findings in the first two sentences and the conclusion expressed in the third sentence.

15    This understanding of the logical structure of SR [112] reveals that the finding that Cali’s natural parents were “equally responsible” for Cali’s wellbeing refers to Cali’s natural parents being “equally responsible” with the applicant, not with each other. The second sentence cannot be construed independently of the first and third sentences and devoid of any context provided by those sentences.

16    I am satisfied that the Minister’s note that “both of Cali’s natural parents are equally responsible”, without the addition of “with the applicant”, for Cali’s wellbeing is an example of a “looseness” or “unhappiness of language”, as identified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In context, the Minister is simply recognising that there are other adults apart from the applicant who are also responsible for Cali’s wellbeing, which the Minister decided confines the importance of Cali’s wellbeing to the Minister’s decision. There is no jurisdictional error in that reasoning.

17    For the foregoing reasons, ground 1 is rejected.

C.    Ground 2: Delay in the exercise of s 501BA

C.1.    Overview

18    There are two limbs to ground 2.

19    First, the applicant contends that the 537-day delay in the Minister exercising the power in s 501BA(2) following the Tribunal’s revocation decision was legally unreasonable. The applicant submits that the delay was legally unreasonable because it had “materially changed the evidentiary state of affairs concerning rehabilitation, community conduct and family life” of the applicant, but the Minister’s risk assessment failed to rationally account for the applicant’s actual conduct in the community during that period.

20    Second, the applicant submits that s 501BA is subject to an implied temporal limitation that requires the s 501BA(2) power to be exercised within a reasonable time after the original decision which was exceeded in the circumstances of this case.

C.2.    Was there a failure to account for a material change in the evidentiary state of affairs?

21    The applicant contends that an extended period of his actual community behaviour, in this case 537 days, is a “logically important data point” in any assessment of his capacity to remain law abiding in the community. He submits that this extended period “cannot be treated as having no explanatory significance without intelligible reasons”.

22    The applicant acknowledges that the present case is factually distinct from the position in CPDL v Minister for Immigration and Citizenship [2026] FCA 342. In that case, Hill J found that the period of 25 months in which the applicant had been in the community before the Minister exercised the discretion in s 501BA was a data point that could not rationally be ignored and the Minister’s reliance on outdated assumptions was legally unreasonable (at [72]-[79]). The applicant accepts that the Minister in this case had “more current material before him” but submits that the underlying principle in CPDL is directly relevant, that is, that “delay may produce evidence about a dynamic risk factor that the decision-maker must rationally integrate into the reasoning”.

23    The applicant submits that the Minister does not explain why the applicant’s “actual period of law-abiding community conduct, employment, self-support and family responsibility”, as recorded by the Minister at SR [56]-[81], did not answer or reduce the risk that financial stress or future financial difficulty might lead to the applicant reoffending. The applicant submits that although the Minister assessed the likelihood of the applicant reoffending as low, the Minister nevertheless used the residual possibility that it might occur to give the protection of community consideration strong weight at SR [83] and [89].

24    I do not accept that the decision of the Minister to give the protection of community consideration strong weight in favour of cancellation was irrational, illogical or not based on facts supported by logical grounds, such that it could not be said to have been reached logically or rationally on the material available to the Minister.

25    The Minister addressed the risk to the Australian community at SR [35]-[83].

26    The Minister found that the applicant had participated in “numerous therapeutic and remand addiction programs” since his offending (SR [62]-[63]), and the applicant had “spoken broadly about engaging with a financial counsellor, getting credit checks and putting financial plans in place” (SR [64]). The Minister nevertheless found that the rehabilitation efforts undertaken by the applicant were “incomplete” which “could leave him open to being enticed to engage in unlawful behaviour again” (SR [65]).

27    The Minister remained concerned, given the applicant’s “numerous financial responsibilities to his new business, his family, and his various charitable donations”, that if past financial issues were not addressed or the applicant’s financial responsibilities became too great a burden in the future then “past financial stressors and/or greed could resurface as a driving force to future offending” (SR [65]).

28    The Minister then concluded at SR [76]–[78]:

I acknowledge the various positive character references for [the applicant], his exemplary conduct in prison and the ART's findings. However, [the applicant] appears to have ceased his psychologist counselling after 3 sessions and as such, I have residual concerns about his capacity to cope in the future if his PTSD and/or mental health is affected.

I consider that [the applicant] has not adequately demonstrated that he has addressed his issues of financial stress through financial counselling and does not appear to have any discernible financial plans in place to limit his exposure to financial stress in the future. Should [the applicant] be again impacted by financial stress, I hold concerns over his capacity to withstand the temptation to engage in unlawful offending.

As such I find [the applicant’s] overall progress towards rehabilitation still has some way to go.

29    The Minister considered that the applicant’s offending was “very serious” and found that the offending had “the potential to cause serious physical and/or psychological injury to members of the Australian community, if repeated” (SR [80]). The Minister then observed at SR [81]-[83]:

A number of factors, as outlined above, may have contributed to [the applicant’s] offending behaviour. I note that [the applicant] has taken full responsibility for his offending; he has developed insight, learnt from his various rehabilitation programs and self-reflected. He has realised greed was a driver of his offending behaviour in the past and has also recognised the importance of setting boundaries and being assertive in relationships. I acknowledge he has conducted himself well during his five years of incarceration and since his release from prison, he has demonstrated law-abiding, commendable conduct and has appropriate supportive social and professional networks.

I accept that [the applicant] has made great strides in his rehabilitation and his ability for self-reflection has increased. However, I remain cognisant that [the applicant] engaged in this very serious criminality when his life was going well, by any standard. I acknowledge that he has undergone some, albeit limited psychological counselling for his mental health issues but there is limited information regarding any ongoing psychological help or financial counselling [the applicant] has participated in. As such, I am not confident that [the applicant] could easily avoid being again enticed into unlawful behaviour again in the future.

Considering the nature and seriousness of [the applicant’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 reoffending, albeit low, I consider that the need to protect the Australian community from criminal or other serious conduct weighs in support of visa cancellation in this case in the national interest.

30    The Minister had regard to the conduct of the applicant following the decision of the Tribunal. The Minister acknowledged that since the applicant’s release from prison, he “has demonstrated law-abiding, commendable conduct and has appropriate supportive social and professional networks” (SR [81]) and the applicant had “made great strides in his rehabilitation” (SR [82]). At the same time, the Minister observed that the applicant had undertaken some psychological counselling for his mental health issues but there was limited information of the applicant engaging in “any ongoing psychological help or financial counselling” (SR [82]). Moreover, the Minister found that the applicant’s offending was very serious and the offending had occurred at a time when the applicant’s “life was going well, by any standard” (SR [82]) and in circumstances where the applicant had admitted that “greed drove his poor decisions in the past” (SR [44]).

31    As submitted by the Minister, it cannot be said that he failed to treat the evidence of the applicant’s conduct since the decision of the Tribunal as “having no explanatory significance without intelligible reasons”. The Minister both explicitly referred to the evidence and integrated it into his overall reasoning as to the weight to be given to the protection of the Australian community consideration. This is not a case in which the Minister “ignored altogether” the applicant’s progress in the community and relied on information which was 25 months out of date, unlike in CPDL at [78]. Nor is this a case in which the Minister had made findings regarding an applicant’s attitude to psychological treatment or counselling at the time of his decision, relying solely on information that was 10 months old, on the basis that the position remained the same at the time of his decision, as in GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at [51]-[52] (Bennett J).

32    It being clear that the Minister gave some weight to the actual conduct of the applicant in the community following the Tribunal’s decision, the applicant’s contention cannot rise above a claim that the Minister gave this conduct insufficient weight. Such a claim inherently invites the Court to undertake an impermissible merits review, absent an extreme case of legal unreasonableness: Leone v Minister for Home Affairs (2020) 277 FCR 526 at [41] (Davies, Steward and Jackson JJ).

33    The first limb of ground 2 is rejected.

C.3.    Is s 501BA subject to an implied temporal limitation?

34    The applicant accepts that any reliance on the reasoning of Horan J in XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553, that the power in s 501BA must be exercised within a reasonable period of time from a revocation decision of the Tribunal, is currently precluded by the findings of the Full Court in Minister for Immigration and Citizenship v XMBQ (2026) 315 FCR 207; [2026] FCAFC 19. There, the Full Court rejected the existence of a general doctrine that statutory powers lapse by effluxion of time, observed that statutory context might impose constraints on the exercise of power, and found that delay ordinarily is concerned with legality, not the continued existence of a statutory power, at [24] (Thawley J, with whom Bromwich J agreed at [1]) citing Culley v ASIC (2010) 183 FCR 279; [2010] FCAFC 43 at [36], [49] and [50].

35    The High Court has, however, granted special leave to appeal the Full Court’s decision: XMBQ v Minister for Immigration and Citizenship [2026] HCADisp 164 but has not yet determined that appeal. A pending High Court appeal does nothing to deprive the binding force of the Full Court’s decision unless and until such time as the appeal succeeds: Mukhtar v Minister for Immigration and Citizenship [2026] FCA 1337 at [94] (Cheeseman J).

36    In circumstances where the authority of the Full Court’s decision in XMBQ is to be determined by the High Court, the applicant submits that I should defer the determination of this ground until the disposition of the appeal.

37    I am not prepared to proceed on that basis. As submitted by the Minister, the appropriate course in all the circumstances is to determine this ground on the basis of presently binding authority.

38    The issue of how to deal with submissions relying on XMBQ at first instance given the pending appeal to the High Court has been considered in a number of recent cases. In Assistant Minister for Immigration v Hood (2026) 317 FCR 178; [2026] FCAFC 98 (Wigney, Younan and Lenehan JJ), the Full Court unanimously held that “[i]t may readily be accepted that the adjournment of a trial or appeal may not necessarily be warranted merely because an application for special leave has been filed in another case in respect of an issue that could affect the outcome of the trial or appeal”: at [9].

39    As for any other procedural discretion, regard must be had to the interests of justice, including the prejudice each party would suffer were this issue determined or not determined and the effect on the administration of justice more generally. That was the approach taken to similar XMBQ submissions in Hood and Fred-Tutavaha v Assistant Minister for Citizenship, Customs & Multicultural Affairs [2026] FCA 1586 at [32] (Hill J).

40    I am not satisfied it is in the interests of justice to defer the determination of this ground, for two principal reasons. First, it is fundamental to the administration of justice that the Act is administered in a timely and efficient fashion. That process cannot lightly be delayed. Second, ultimately the more efficient and just resolution of all matters in this proceeding would be facilitated by minimising the prospect of two potential appeals – that is an appeal from this judgment and the possibility of a second appeal if the High Court upheld the appeal in XMBQ and I subsequently then considered the deferred ground and there was an appeal from my judgment on that issue.

41    For these reasons, I reject the second limb of ground 2 as contrary to the binding authority of the Full Court in XMBQ.

D.    Disposition

42    For the foregoing reasons, the applicant has not established that the Minister’s decision was affected by legal unreasonableness. Nor is it open to me to find that the power in s 501BA of the Act is subject to any implied temporal limitation.

43    Accordingly, the amended originating application is to be dismissed and the applicant is to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    13 November 2026