Federal Court of Australia

Belmont v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1720

ORDERS

THE COURT ORDERS THAT:

1.    The amended application is dismissed.

2.    The applicant is to pay the respondent’s costs of the application to be taxed if not agreed.

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 is a citizen of New Zealand who has predominantly lived in Australia since 2011. He first travelled to Australia in January 1998 and has frequently travelled in and out of Australia since then. His most recent arrival was in January 2019. On 17 January 2019 the applicant was granted a temporary Class TY Subclass 444 Special Category visa.

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

3    On 23 September 2021 the applicant was convicted of three counts of contravention of a domestic violence order (aggravated offence) in the Magistrates Court of Queensland. The offences were committed against his ex-partner. The applicant also breached a probation order. He was sentenced to 12 months’ imprisonment for the domestic violence counts to be served concurrently and separately to three months’ imprisonment for the breach of probation order count.

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 9 November 2021. The applicant made representations to request a revocation of the cancellation decision on 26 November 2021. On 27 February 2023, a delegate made a decision not to revoke the cancellation decision under s 501CA of the Migration Act.

5    The applicant applied to the Administrative Appeals Tribunal for merits review of the non-revocation decision, but on 22 May 2023 the Tribunal affirmed the delegate’s decision. This decision was the subject of a successful judicial review application to this Court: Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667 (Horan J). The matter was remitted to the Administrative Review Tribunal.

6    On 2 April 2025 the Tribunal set aside the non-revocation decision and decided in substitution that the delegate’s cancellation decision should be revoked. As a result of the Tribunal’s decision the applicant’s visa was reinstated and he returned to the community.

7    The Tribunal relevantly concluded that although the family violence had been serious and repeated, the applicant had worked hard to address his past addictions, had close family support and had taken responsibility for his actions, and that these matters in particular meant that the balance of the various relevant considerations fell ‘very slightly’ in favour of revocation of the visa cancellation decision.

8    On 14 July 2025 the Assistant Minister decided to exercise the power under s 501BA(2) of the Migration Act to set aside the Tribunal’s decision and cancel 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 in these reasons.

9    The Minister considered various considerations against cancellation, such as the applicant’s ties to Australia, the impediments to be faced by him if removed from Australia and the best interests of minor children. He also included a paragraph headed ‘Legal consequences of the decision’ (extracted further below).

10    In considering the matter of national interest, the Minister referred to the risk to the Australian community and the likelihood of the applicant reoffending. The Minister described the applicant’s offending as ‘very serious’ and concluded that there remains ‘an ongoing likelihood’ the applicant will reoffend.

11    The Minister concluded that considerations against cancellation were outweighed by ‘serious national interest considerations’.

12    In this proceeding the applicant challenges the Minister’s decision on three grounds said to show jurisdictional error. The grounds relate respectively to the treatment by the Minister of the legal consequences of a cancellation decision; the effect of mental health issues and stress on mitigating the seriousness of the applicant’s offending; and the failure of the applicant to disclose prior convictions on an incoming passenger card dated 7 January 2019.

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(2)

14    It is well-recognised that the power granted to a Minister to override a Tribunal decision and cancel a visa is not conditioned on any error on the part of the Tribunal. Rather, the power is enlivened on the Minister being satisfied that the cancellation is in the national interest.

15    I note that I gathered some of the relevant authorities recently in Fotu v Minister for Immigration and Citizenship [2026] FCA 1589 at [15]-[18] and the following paragraphs largely adopt that summary for convenience.

16    In CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192, Owens J said 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).

17    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]).

18    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.

19    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).

Ground 1 – issue of regard to legal consequences

20    By ground 1 the applicant contends that the Minister erred by failing to consider the legal consequences of the applicant being taken from the community and being detained in immigration detention. The applicant submitted that there is no express reference to such legal consequence in the reasons and that it is to be inferred that the Minister failed to consider it. It is said that such failure to consider the legal consequence is material.

21    The Minister’s reasons, as in a number of recent cases, do not make specific reference to the legal consequence of visa cancellation: for example, Kerr v Minister for Immigration and Citizenship [2026] FCA 726 at [39] (Collier J); Kim v Minister for Immigration and Citizenship [2026] FCA 1243 at [35] (Hespe J) (both of which I understand are subject to appeal); Fotu at [100]; and Fred-Tutavaha v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1586 (Hill J) at [38].

22    The applicant submitted, relying on NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9]-[10] (Allsop CJ and Katzmann J), that the Minister exercising power under s 501BA is obliged to consider such legal consequence. Although the Minister resisted that proposition during the hearing, so much has since been confirmed in Chukwuma v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 121; (2026) 318 FCR 242 at [64]-[65] (Moshinsky and Dowling JJ); and Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130 at [64]-[65] (Collier, Neskovcin and Moore JJ).

23    However, as confirmed by the Full Court in Manebona at [72], 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’. This follows from the application of established principles, as set out in Manebona 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].

24    In the circumstances of this case, although the consequence of immigration detention is not expressly referred to, I do not consider an inference can properly be drawn that the Minister failed to consider the legal consequences of a decision by him to cancel the applicant’s visa, consequences that included being detained in immigration detention in the context of a pending removal to New Zealand.

25    The following matters, taken together, have informed this conclusion.

26    Although not expressly referred to in the reasons, the legal consequence of immigration detention was expressly referred to in the brief to the Minister. It included the paragraph:

A decision to set aside the decision of the ART and cancel Mr BELMONT’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 BELMONT notice of your decision and take him into immigration detention. Once detained, unless a new visa is granted, Mr BELMONT 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 BELMONT’s visa he will remain in the community.

27    The Minister received, annotated and endorsed his signature on the brief. Although I have considered the applicant’s submission that I should disregard material in the brief (not included in the reasons), I consider that in the circumstances of the signing of the brief with its attached draft reasons, it is a matter which can be taken into account, together with all other relevant circumstances (Fred-Tutavaha at [40]). The Minister accurately described the power he was exercising under s 501BA(2) to cancel the visa (R [6]-[7]).

28    Although I note that the reasons at R [155] contain one paragraph under a heading ‘Legal consequences of the decision’, I do not consider this rebuts the proposition that there was a failure to consider the issue of immigration detention. The paragraph does not in fact address the legal consequences of visa cancellation. It provides:

Legal consequences of the decision

155.    Mr BELMONT 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 BELMONT is not covered by a protection finding as defined in s197C of the Act.

29    The same heading and single paragraph were included in the reasons the subject of Fotu (and other cases). Consistent with my observations in Fotu (at [98]-[99]), I consider that what is said by the Minister in this extracted paragraph is not a legal consequence of the cancellation decision and does not (without more) evidence consideration of the legal consequences of a visa cancellation. It provides information which indicates that the applicant had no other visa option available to him at the time and so no application awaiting decision, but it does not expressly refer to the legal consequences of cancellation in this case, being relevantly removal from the community to immigration detention followed by removal to New Zealand.

30    However, the Minister’s reasons are not to be construed by reference only to R [155]. 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, relevantly immigration detention.

31    It is apparent from the reasons that the Minister knew that an outcome of cancellation was that the applicant would cease being at liberty in the community. So much is apparent from the reference to him being released from immigration detention when his visa was reinstated by the Tribunal (briefing paper provided to the Minister dated 14 July 2025 and signed by the Minister, para 6); the reference in the reasons to his relocation to Perth and support from family members in Perth (R [87]-[88]); and the reference to his employment and employment offers (R [93]-[94]).

32    It was also 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 removed from Australia. The Minister referred to the applicant’s statement that if he were to be removed to New Zealand his children would ‘lose’ their father and access to his culture (R [123]); the Minister concluded that if the applicant were to resume alcohol or substance abuse it might be in the interests of the children that he is returned to New Zealand (R [128]); and the Minister stated that if he is removed to New Zealand, his nephews and nieces might maintain electronic contact with him (R [134]). The Minister’s consideration of the effect of visa cancellation on minor children was clearly premised on an outcome that the applicant would be removed to New Zealand upon any cancellation of his visa.

33    As the relevant removal was to New Zealand, this is not a case where any issue or evidence of indefinite or prolonged immigration detention or other particular circumstances relevant to detention arise. 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.

34    Finally, I note that I have taken into account the applicant’s submission that Manebona (relevantly referring to the primary judge’s decision in Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 at [72]-[73] (Wheatley J), upheld on appeal), where a similar argument as to failure to consider immigration detention failed, is distinguishable because the Minister in that case had referred to immigration detention on one occasion in the reasons: see Fotu at [103]-[105], [111]. This distinguishing feature can be accepted. However, it was not suggested in Manebona (by the primary judge or on appeal) that the absence of any such express reference will of itself lead to an inference being drawn that immigration detention was not considered by the decision maker.

35    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.

36    Ground 1 is rejected.

Ground 2 – issue of whether stress mitigated seriousness of conduct

37    By ground 2 the applicant contends that the Minister erred jurisdictionally by reasoning illogically, irrationally or unreasonably that the applicant’s mental health issues and stress did not mitigate or reduce the seriousness of his offending. This is a reference to the finding at R [57], which is extracted below in these reasons.

38    As discussed in the authorities referred to at [16] above, what is in the ‘national interest’ is a broad and evaluative criterion, and largely political.

39    The Minister in this case said that in determining whether it was in the national interest to cancel the applicant’s visa, he gave the highest priority to the safety and protection of the Australian community, and that in so doing he considered the seriousness of the applicant’s offending ‘having regard to the circumstances and nature of the conduct’, the likelihood of him reoffending and the risk he poses to the Australian community if the likelihood eventuated (R [15]-[16]).

40    The Minister said:

17.    The Australian government considers that all offending involving violence or sexual assault, particularly against women or children, is viewed very seriously by the Australian community. Acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed, are also viewed very seriously by the Australian community.

18.    Conduct involving actual, threatened or implied family violence is of special concern to the Australian community because of the special vulnerability of victims who live in a domestic relationship with and/or are dependent on the perpetrator, and the very harmful impact of such conduct on family life, especially on children who experience or witness it.

41    The Minister recounted elements of the applicant’s offending that had led to his imprisonment, in particular noting that his conduct included matters that fell within the description of actual, threatened or implied family violence.

42    As to the particular offending, the Minister recounted in his reasons a series of domestic violence offences, some of which involved serious threats and physical harm to the applicant’s former partner and some of which occurred in front of minor children. The applicant had admitted to being drunk at the time of some of the offending. The Minister noted that the Magistrate had described the applicant’s offending as ‘very serious’ and added that as the violence took place in front of children, it was ‘reprehensible behaviour’ (R [33]). The Minister said that the victim had likely experienced physical and psychological harm as a result of the applicant’s conduct, and that the children had likely been indirectly affected (R [35]).

43    The Minister also said:

36.    In considering the nature and seriousness of Mr BELMONT’s criminal offending, I take the view that offences involving family violence can be viewed very seriously, especially where those offences have occurred in the victim’s home, where they are entitled to feel safe at all times, and in violation of their sanctuary.

44    As to this offending, the Minister concluded:

38.    I find that Mr BELMONT committed violence against the victim on multiple occasions; in front of his children; while he was subject to an enforceable DVO; and on probation for a similar offence. I concur with the findings of the court and ART that Mr BELMONT’s family violence conduct is very serious.

45    The Minister then recounted other offending committed by the applicant from 2015 to 2021, including drug possession offences, public nuisance and bicycle safety offences, for which he received fines. Between 2020 and 2021 he also committed 11 traffic offences, nine of them involving excessive speed.

46    The Minister concluded that the applicant had been in trouble with the law ‘almost continuously since 2015’, and that the nature and seriousness of his offending had escalated from minor drug related offences to serious family violence offences over a period of five to six years.

47    Against this backdrop the Minister considered the risk to the Australian community from future offending, having regard to the factors that may have contributed to the applicant’s past conduct and the circumstances of his remorse and rehabilitation, including protective factors.

48    It is the Minister’s treatment of factors said to be relevant to past offending that underlies ground 2 of this review application.

49    Relevantly, the Minister said (emphasis added):

54.     Mr BELMONT states that he was ‘going through a hard time dealing with depression’ (Attachment E) and at the ART acknowledged that the use of illicit drugs and alcohol was a ‘coping mechanism for his depression and anxiety’, Attachment N.

55.     Mr BELMONT also stated that he was under a stressful financial situation at the time of his index offending as he had been ‘laid off’ due to the COVID-19 pandemic and his rental lease had expired. Around the same time, Mr BELMONT’s mother-in-law passed away and his then partner had to fly to Perth to attend to funeral arrangements. Mr BELMONT states this time was ‘very tough’ leading him and his ex-partner to regularly argue, which then led to ‘trouble with the law’. Mr BELMONT explained that the stress got to him, causing him to lose control, Attachments D and Fl.

56.     Mr BELMONT maintains that his violent offending was not ‘drug’ related, but due solely to the stress he was under at the time, Attachment E. As noted earlier, Mr BELMONT did accept before the ART that he was intoxicated at the time of at least one of the offences.

57.    I acknowledge that Mr BELMONT was enduring stress and pressure in his life, especially with regards to financial difficulties at the time of his offending. I also acknowledge that Mr BELMONT has mental health issues that were exacerbated by the stress he was experiencing, and that he turned to alcohol and drugs as a coping mechanism. I accept that all these factors provide context and contributed to Mr BELMONT’s offending behaviour. However, I do not accept these factors mitigate or reduce the seriousness of his offending.

50    The Minister returned to the factors that may have contributed to the applicant’s offending later in his reasons, stating:

100.    I acknowledge that a number of factors, as outlined above, may have contributed to Mr BELMONT’s offending behaviour. I also acknowledge that Mr BELMONT has engaged in some rehabilitation, including various treatment and intervention plans and has enrolled in and completed some courses. He has also identified that a stable home and family support interstate will assist with his recovery and act as protective factors to reduce his risk of reoffending. I accept that Mr BELMONT has expressed some remorse for his offending, though I note this has mainly been for the consequences of his offending on himself and his children. The level of insight Mr BELMONT has demonstrated into the seriousness of his conduct remains concerning.

51    The Minister concluded that the nature of the applicant’s offending was very serious (R [99]) and that acts of family violence have the potential to cause serious physical and psychological injury to members of the Australian community, if repeated.

52    The applicant submitted that having decided to proceed on the basis that the seriousness of offending was one of the measures to be taken into account, the Minister was obliged to inform his assessment by regard to principles articulated in the context of criminal sentencing, although the applicant acknowledged that the principles that bind a sentencing court cannot be completely transposed to the different task undertaken by a Minister in the exercise of power under s 501BA(2).

53    During the course of the hearing, the scope of this submission was somewhat broadened. The applicant explained that the ground was not premised on an obligation in the circumstances to have regard to sentencing principles, but rather on jurisdictional unreasonableness by the Minister in concluding that the seriousness of the applicant’s offending was not mitigated by factors such as his mental health or stress that were part of the context and contributed to his offending (regardless of sentencing principles). For procedural fairness reasons, I invited the Minister to provide supplementary submissions addressing this re-stated ground 2, and that opportunity was taken up by the Minister.

54    Regardless, the applicant relied on the manner in which personal factors such as impaired mental health are taken into account in sentencing as informing the task that it was said the Minister should have undertaken.

55    The applicant submitted that where an offender’s mental health and emotional stress has contributed to their criminal offending, this contribution will be relevant to the seriousness of the offence and the offender’s moral culpability, and to the consideration of an appropriate sentence. The applicant cited R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32(1)] and DPP (Cth) v De La Rossa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. These cases record that where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing, one being that where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced – consequently the need to denounce the crime may be reduced with a reduction in the sentence. The applicant also referred to the statement by Brennan J in Neal v The Queen (1982) 149 CLR 305 at 324 that ‘emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor’.

56    In the Migration Act context, the applicant referred to Pillay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1535, in which Rangiah J acknowledged the potential overlap of considerations informing the appropriate criminal sentence and the exercise of power under s 501CA(4) of the Migration Act. The applicant in Pillay had submitted before the Tribunal that a reason for revoking the cancellation of his visa was that his moral culpability for his criminal offending was reduced by reason of his having grown up, ‘in an environment surrounded by alcohol abuse and violence’, relying upon Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43]-[44]. Justice Rangiah said:

[92]    Bugmy was concerned with punishment of offenders for criminal offending.  In contrast, a decision to cancel a visa under s 501(3A) of the Act, and any subsequent decision as to whether to revoke the cancellation decision under s 501CA(4) of the Act, is not made for the purpose of punishing an offender, but for the protection of the community: see Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [47], [88] and [93].  However, as the operation of s 501(3A) of the Act requires the Minister’s satisfaction that the person has, relevantly, been sentenced to a term of imprisonment of 12 months or more and is serving a sentence of imprisonment on a full-time basis, there will be some overlap between factors taken into account by the sentencing judge and factors relevant to a decision under s 501CA(4) of the Act.  The need for protection of the Australian community against further offending is an obvious example.

[93]    In Herrmann, the Victorian Court of Appeal observed at [14]:

In assessing an offender’s ‘moral culpability,’ the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct.  Determining how harshly a particular offender is to be judged — and punished — often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct.  To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated.

[94]    The moral culpability of the former visa holder may have some relevance under s 501CA(4) of the Act.  For example, where an offender’s moral culpability can be regarded as reduced because of an abusive upbringing resulting in drug addiction and mental illness, the decision-maker might conclude that the expectations of the Australian community are that such a person should be permitted to remain in the community.  Conversely, the decision maker might consider that the community has a high need for protection from such a person because they are less likely to control their offending behaviour.  Of course, a decision-maker cannot revoke a cancellation decision for the purpose of punishing a morally culpable person.

57    The applicant submitted that as the Minister had identified the seriousness of the offending as relevant to whether or not he was satisfied that cancellation of the visa was in the national interest, there was no rational or logical basis to fail to adjust the seriousness of the offending, having regard to the mental health issues and stress that the Minister accepted contributed to the offending. The applicant contended that where the assessment of the national interest hinges upon the purported seriousness of criminal conduct, a departure from the way the criminal law assesses the seriousness of an offence called for some explanation. The Minister failed to follow the ‘next logical step in the reasoning process’ of ‘analysing how the factors mitigated the seriousness of the offending or rationally explaining why they did not’.

58    The applicant submitted, in effect, that having identified matters that ‘contributed’ to the offending and that in the context of criminal sentencing may be taken into account to mitigate moral culpability, the Minister failed to treat those matters as mitigating or to explain why he concluded that they were not. So much was said to be revealed by the Minister’s reasons at R [57], extracted at [49] above. The applicant submitted that the characterisation of the offending was a critical fact in the Minister’s decision. It followed, it was submitted, that the Minister’s formation of the state of satisfaction was not reached reasonably and revealed jurisdictional error.

59    The Minister submitted that the points of reference for his characterisation of the seriousness of the offending for the purpose of s 501BA(2) were the views of the Australian government and the Australian community, as set out in the paragraphs extracted at [40] above. This approach coheres, it was said, with the established principle that the national interest is largely a political question.

60    As well-recognised and explained by Rangiah J in Pillay at [92], the task of a sentencing court to punish an offender is undertaken in a different context to the exercise of power by a decision maker under (relevantly) s 501(3A) (as considered in Pillay) or s 501BA(2) of the Migration Act.

61    Whilst acknowledging that the ‘national interest’ is undefined, it was open to the Minister to treat the protection of the community as relevant to the national interest. The applicant did not suggest otherwise.

62    However, the Minister was not obliged to weigh or synthesise personal factors such as stress in the same manner as might be done by a sentencing court, with its focus on punishment and deterrence. Nothing in the approach in the sentencing cases suggests that it is irrational, illogical or unreasonable for an administrative decision maker to decline to adjust an assessment of the seriousness of offending when forming a view as to whether they are satisfied that visa cancellation is in the national interest. Further, the sentencing cases permit reference to ‘countervailing circumstances’ that might in some cases outweigh circumstances of mitigation (Neal). And as Rangiah J acknowledged in Pillay at [94], a decision maker might form the view that there is a higher need for protection in circumstances where the personal factors relevant to an individual might increase the risk of re-offending. A number of factors might be relevant to the degree of seriousness with which criminal conduct might be regarded by a decision maker in terms of protection of the community.

63    This is not a case where the Minister has overlooked matters that might mitigate moral culpability for criminal offending in a sentencing context. The Minister expressly referred to the applicant’s stress and mental health issues, and his use of alcohol and drugs as a coping mechanism.

64    However, in considering the particular question of the national interest, the Minister also emphasised in various parts of his reasons that all offending involving violence or sexual assault, particularly against women or children, is viewed very seriously by the Australian community, regardless of whether there is a conviction, and because of the very harmful impact on children and family life. The Minister’s relatively detailed summary of the applicant’s offending revealed the extent to which the applicant’s offending involved threats of violence and family violence committed on ‘multiple occasions’, including in the victim’s house ‘in violation of [her] sanctuary’, and in the presence of the applicant’s children.

65    I accept the Minister’s submission that it does not follow from the Minister’s acceptance that certain personal factors provide context and contributed to the applicant’s offending that there must be a reduction of the assessment of the seriousness of the offending when considering the national interest. These were matters for consideration by the Minister. In circumstances where the Minister had identified those personal factors but also identified other matters relevant to his statutory task, a fair reading of the Minister’s finding that the personal factors did not ‘mitigate or reduce the seriousness’ of the applicant’s offending is that the Minister was not satisfied that such personal matters were so material when considered in the overall context of the national interest as to warrant an assessment that the offending was anything other than ‘very serious’. Whilst I acknowledge that the Minister did not expressly state that this was the underlying reason for not adjusting his assessment of the seriousness of the offending, so much is in my view obvious and properly inferred from the manner in which he considered the ‘special concern’ of family violence, the protection of the community and the serious circumstances of the applicant’s offending (including the effect on the victim and children) before declining to accord mitigating status to the particular personal factors.

66    I do not accept that the applicant has established jurisdictional error on the part of the Minister as claimed by ground 2.

67    It is important to return to principles. 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).

68    The applicant contends in this case that legal unreasonableness is found in the Minister’s process of reasoning that the relevant personal factors do not require any adjustment to be made to the assessment of the seriousness of the criminal conduct.

69    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).

70    Having regard to the task undertaken by the Minister and the decisional freedom open to him under s 501BA(2) in deciding what and how certain matters might be taken into account, I do not consider that the impugned reasoning discloses either illogicality, irrationality or other jurisdictional error. It was open on the evidence to find that the nature of the applicant’s offending, in the context of the community’s abhorrence and intolerance of domestic and family violence and its impact on children, was such that mitigating factors might be given either no or very little regard. There was room for a logical and rational person to form the same view, even if other views might have been available.

71    The applicant has not established that in reaching the requisite state of satisfaction the Minister acted unreasonably.

72    Ground 2 is rejected.

Ground 3 – issue of incoming passenger card declaration

73    By ground 3 the applicant alleges that the Minister erred in concluding that the applicant intentionally withheld details of his convictions on an incoming passenger card dated 7 January 2019.

74    Ground 3 is put on two bases: (1) whether there was evidence and a rational basis in the Minister’s reasons to support the finding; and (2) whether the finding was attended by, and the result of, an unreasonable failure to seek information.

75    The Minister referred to the applicant’s undeclared conviction only briefly, and as the last matter addressed in the section of the reasons addressing the seriousness of the offending:

44.    Mr BELMONT failed to declare his convictions on his Incoming Passenger Card dated 7 January 2019, Attachment M. Mr BELMONT told the [Tribunal] that he did not read the card properly and that he had no intention to deceive, Attachment N.

45.    I conclude that since Mr BELMONT has travelled on multiple occasions, he would be familiar with the Incoming Passenger Card. I therefore find it is likely that Mr BELMONT intentionally withheld the details of his convictions. I have given this conduct moderate weight toward the overall seriousness of his offending.

76    As to the relevant materials before the Minister:

(a)    the incoming passenger card was signed by the applicant and, in relation to the question ‘Do you have any criminal conviction/s?’, was marked ‘no’;

(b)    the National Criminal History Check dated 3 April 2025 records various fines and a spent conviction prior to 7 January 2019, but relevantly records a conviction of ‘Commit Public Nuisance’ on 3 April 2017;

(c)    the applicant’s movement history recorded that the applicant had arrived in Australia numerous times before his arrival on 7 January 2019 (the Minister in his written submissions submitted that there were five arrivals, but the movement history refers to more than five – this makes no difference to the outcome);

(d)    the Tribunal’s reasons recorded the incoming passenger card declaration and that the applicant said ‘he did not read the card properly and that he had no intention to deceive’; and

(e)    the applicant’s letter to the Tribunal (as first constituted) of 26 April 2022 which stated that he did not read the incoming passenger card properly and did not intend to deceive.

77    As to the first basis, the applicant submitted that there was no evidence or reasonable inference to contradict the applicant’s explanation and his explanation was ‘entirely plausible’ such that the Minister’s rejection of the applicant’s evidence was not rational. Further, the applicant submitted that the Minister’s rejection of the applicant’s explanation ‘did not logically lead to a positive finding that the [applicant] intentionally withheld details of his conviction’.

78    The applicant submitted that whilst the applicant had travelled on multiple occasions in and out of Australia, the most recent travel before his failure to disclose was some five years previously.

79    It is apparent that the Minister reasoned that in light of the history of travel in and out of Australia on multiple occasions, the applicant would have had some familiarity with the content of an incoming passenger card. The card was in fact completed and the applicant did not contend he did not read it at all. In those particular circumstances of multiple entries into Australia, it is apparent that the Minister did not accept the applicant’s explanation as justifying the negative answer provided on the card. The Minister found it was more probable than not (‘likely’) that the answer was therefore given intentionally to withhold details of the conviction.

80    The Minister was not obliged to accept the applicant’s explanation, and the applicant has not met the threshold of establishing that the Minister’s reasoning was illogical or irrational. The Minister disclosed the basis for rejecting the applicant’s evidence and drawing the inference that was drawn. It was not irrational or illogical to reason that a history of multiple entries into the country suggested the applicant was familiar with incoming passenger cards, even allowing for the lapse of time since the previous entry. It cannot be said that there is no logical connection between the evidence (relevantly the completion of the card and the multiple entries) and the inferences or conclusions drawn. Although it was not the only conclusion available, a logical or rational person could have arrived at the same conclusion on the material before them: that is, that it was ‘likely’ (not certain) that the applicant intentionally withheld the information.

81    To the extent the applicant complains that the Minister did not refer in his reasons to the applicant’s letter of 26 April 2022, no different result follows. The content was consistent with the Tribunal’s reasons of 2 April 2025 (which were expressly referred to) and in any event, for the reasons to which I now turn, the extent to which the Minister was obliged to consider the applicant’s letter and the weight to be given to it remained a matter for him.

82    This leads to the second basis and final point.

83    The applicant submitted that although they did not form part of the brief provided to him, the Minister had in his constructive possession the transcript of the first Tribunal proceedings and its reasons of 22 May 2023 (the first Tribunal had concluded that the applicant had nothing to gain from providing a false answer in the incoming passenger card). The applicant submitted that the Minister, having identified the relevance of the incoming passenger card to the applicant’s conduct, was required to make findings about it reasonably, and this included by considering the identified materials which were in his constructive possession.

84    In support of this submission, the applicant relied on the suggestion of Feutrill J in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [191] (also in the context of s 501BA(2) of the Migration Act) to the effect that unreasonableness may include a failure to consider information in the Minister’s possession that was manifestly material but was ignored or overlooked. The applicant conceded during the hearing that this suggestion was inconsistent with the majority of the Court in Palmer (Derrington and Hespe JJ at [123]) and, to the extent it was inconsistent, it had subsequently been doubted in Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192; (2025) 314 FCR 376 at [99] (Kyrou and Needham JJ). However, the applicant formally maintained his submission.

85    In Palmer, Derrington and Hespe JJ said at [123]:

Ms Palmer also framed her case on the basis that the overlooking of the material amounted to a failure to consider relevant information. However, that characterisation of the error is also founded upon a denial of the nature of the power in s 501BA(2). The absence of any obligation to accord natural justice to the visa holder has the consequence that the only material which might be sent to the Minister by the visa holder which is legally relevant to the Minister’s decision is that which he or she chooses to consider. No error can arise from the Minister ignoring any material received in the absence of any obligation to consider it. As was observed in EUF20 in relation to a relevantly indistinguishable power, being s 501(3) of the Act, there is no free-standing obligation to have regard to new information received by the Minister even if it was possibly relevant. Indeed, given the exceptional nature of the power in s 501BA(2): DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [13]: and the relative decisional freedom of the Minister as to what might be considered in determining what is in the national interest: Vargas at [61]: any failure of the Minister to consider material which was presumptively relevant to the decision cannot, without more, go to jurisdiction: Vargas at [62].

86    This passage was cited with support and said to be correct by the plurality in Po’oi at [99]. Further, 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).

87    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).

88    In the circumstances, and applying Po’oi and Luong, I do not consider the Minister was obliged to obtain and consider the transcript and reasons relating to the first Tribunal hearing, and there is no jurisdictional error revealed by his failure to do so. It was a matter for the Minister to decide which materials he would consider and the matters he would take into account. As it happens, the Minister apparently considered the Tribunal reasons of 2 April 2025 as they are referred to in his reasons. However, this course was a matter for the Minister. He was not obliged to have regard to the earlier Tribunal reasons.

89    It follows that ground 3 is rejected.

Conclusion

90    The application is dismissed, and the applicant is to pay the respondent’s costs.

Associate:

Dated:    13 November 2026