CPDL v Minister for Immigration - Judicial Review of Migration Decision

Original Word Document (136.1 KB) Federal Court of Australia

CPDL v Minister for Immigration and Citizenship [2026] FCA 342

| File number(s): | VID 1391 of 2025 |
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| Judgment of: | HILL J |
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| Date of judgment: | 27 March 2026 |
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| Catchwords: | MIGRATION – application for judicial review of decision by the Respondent under s 501BA of the Migration Act 1958 (Cth) – where Respondent’s decision under s 501BA was made over two years after the original decision by the Administrative Appeals Tribunal – whether Respondent’s decision illogical or irrational by making findings about the risk of reoffending that assumed that the circumstances remained the same as at the time of the Tribunal’s decision, or otherwise without a probative basis – whether Respondent failed to consider the legal consequences of his decision – whether Respondent’s decision not made within a reasonable time – certain findings on risk of re-offending were illogical or irrational – application allowed

PRACTICE AND PROCEDURE – application for an extension of time – application for judicial review made 16 months after the Respondent’s decision – no sufficient explanation for delay – proposed grounds of review raise have considerable merit and the effect on the Applicant’s liberty of not granting an extension would be severe – extension of time granted |
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| Legislation: | Migration Act 1958 (Cth) ss 477A, 501BA |
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| Cases cited: | AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884

ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 7

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424

Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471

AZS21 v Minister for Home Affairs [2021] FCA 392

Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600; (2025) 310 FCR 606

Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24

CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480

CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199

CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21

Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 496

EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155

EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492

Fetelika v Assistant Minister for Immigration [2025] FCA 1249

Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146; (2024) 306 FCR 271

GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415

Hood v Assistant Minister for Immigration [2025] FCA 1336

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299

Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6

Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19

Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1010

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137

Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156

Patrick v Australian Information Commissioner [2024] FCAFC 93; (2024) 304 FCR 1

Pearson v Minister for Home Affairs [2022] FCAFC 2023

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Song v Minister for Immigration and Citizenship [2025] FCA 1351

SZJRV v Minister for Immigration and Citizenship [2008] FCA 298

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146

Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517

Thornton v Repatriation Commission (1981) 52 FLR 285

Tran v Minister for Immigration and Border Protection [2014] FCA 533

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579

Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387

VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983

Wei v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 268; (1991) 29 FCR 455

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463

WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736

XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553

XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 |
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| Division: | General Division |
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| Registry: | Victoria |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 111 |
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| Date of hearing: | 6 March 2026 |
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| Counsel for the Applicant: | Mr M Guo |
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| Solicitor for the Applicant: | Refugee Legal |
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| Counsel for the Respondent: | Mr J Kay Hoyle SC and Mr J Barrington |
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| Solicitor for the Respondent: | Australian Government Solicitor |
ORDERS

| | | VID 1391 of 2025 |
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| BETWEEN: | CPDL

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent | |

| order made by: | HILL J |
| DATE OF ORDER: | 2 7 march 2026 |
THE COURT ORDERS THAT:

1. The time for applying for judicial review of the Respondent’s decision made on 31 May 2024 under s 501BA(2) of the Migration Act 1958 (Cth) (the Respondent’s decision) is extended until 23 October 2025.

2. The Respondent’s decision is set aside.

3. The Respondent is to pay the Applicant’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

A.    introduction

1 This is an application for an extension of time to review a decision by the Respondent (the Minister) made under s 501BA of the Migration Act 1958 (Cth), that set aside a decision of the former Administrative Appeals Tribunal, and cancelled the Applicant’s visa. The Minister’s decision was made 25 months after the Tribunal’s decision. This application in turn was made more than 16 months after the Minister’s decision.

2 The Applicant seeks to raise the following grounds of review if an extension of time is granted:

(1) the Minister’s decision was illogical or irrational, because it was made more than 25 months after the Tribunal’s decision without seeking further information from the Applicant, and critical findings are based on an unwarranted assumption that circumstances remained the same as at the time of the Tribunal’s decision;

(2) the Minister erred by failing to appreciate that the legal consequences of a cancellation under s 501BA was to expose the Applicant to prolonged immigration detention of uncertain duration (“indefinite detention”); and

(3) the Minister’s decision is invalid because it was not made within a reasonable time of the Tribunal’s decision.

3 I would grant an extension of time: although the delay is very substantial, the arguments have considerable merit and the impact on the Applicant’s liberty of not granting an extension of time is severe. For the following reasons, I would uphold ground (1), but reject ground (2). Ground (3) must also be rejected in light of a Full Court decision handed down after the hearing of this matter. The application must therefore be allowed, with costs.

4 Evidence: The Applicant relies on an affidavit of Ms Cassandra Benjamin (Managing Solicitor, Refugee Legal) affirmed on 23 October 2025, for the extension of time application. The Minister relies on an affidavit of Ms Jodi Stubbs (an Assistant Secretary in the Minister’s Department) affirmed on 9 February 2026, which sets out the steps taken in the Department and the Minister’s office between the Tribunal’s decision and the Minister’s decision.

B.    background

B.1    Chronology

5 Arrival in Australia (2010): The Applicant is a citizen of Uganda. He arrived in Australia in May 2010 on a XB subclass 200 visa.

6 Applicant sentenced to 5 years ’ imprisonment (Mar 2020): On 13 March 2020, the Applicant was sentenced to a total effective sentence of five years’ imprisonment for multiple and serious assault offences committed against his former partner on 11 May 2019. This sentence was to be suspended for five years after the Applicant had served 14 months.

7 Applicant ’ s visa mandatorily cancelled (May 2020): On 14 May 2020, the Applicant’s visa was cancelled under s 501(3A) of the Act. On 22 May 2020, he requested revocation of that cancellation.

8 Delegate refuses to revoke cancellation (Jan 2022): On 17 January 2022, a delegate of the Minister decided under s 501CA of the Act not to revoke the cancellation of the Applicant’s visa. The Applicant applied to the Tribunal for merits review of that decision.

9 Tribunal revokes cancellation of Applicant ’ s visa (Apr 2022): On 11 April 2022, the Tribunal decided under s 501CA of the Act to revoke the cancellation of the Applicant’s visa. The Tribunal provided its reasons on 9 May 2022. The Tribunal applied Ministerial Direction No 90 (Tribunal reasons (AAT) [14]). In summary:

The Tribunal found that the primary considerations of protection of the Australian community, family violence and community expectations provided a “very strong case” for affirming the cancellation of the Applicant’s visa. On the other hand, the prospects of indefinite detention and, less significantly, the best interests of minor children weighed in favour of revoking that visa cancellation (AAT [64]).

The Tribunal concluded that the prospect of prolonged immigration detention (in the sense discussed in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463) was the decisive factor, and the Applicant’s liberty must be given very serious weight (AAT [67]).

10 Minister cancels Applicant ’ s visa under s 501BA (May 2024): On 28 May 2024, more than two years after the Tribunal’s decision, the Minister decided under s 501BA of the Act to set aside the Tribunal decision, and to cancel the Applicant’s visa.

The Minister chose to proceed without giving the Applicant an opportunity to be heard before making the decision (Statement of Reasons [10]). The Minister gave consideration to the representations made by the Applicant to the delegate and in the Tribunal proceedings, and had regard to the considerations set out in Ministerial Direction No 99 (Reasons [11]-[12]).

In deciding whether cancellation of the Applicant’s visa would be in the national interest, the Minister considered that the national interest included (among other things) the protection of the community, especially from family violence, and the expectations of the Australian community (Reasons [19]). The Minister concluded that the use of the s 501BA power to cancel the Applicant’s visa was in the national interest (Reasons [88]). Among other things:

• the Minister stated that he was not satisfied that the Applicant had addressed his alcohol and anger management issues sufficiently so as not to pose a risk to the community, in particular women (Reasons [85]).

• the Minister considered it highly unlikely that the decision to cancel the Applicant’s visa would result in his removal to Uganda in breach of any international non-refoulement obligations (Reasons [87]).

The Minister then considered other matters that weighed against setting aside the Tribunal’s decision and cancelling the Applicant’s visa; namely, the best interests of minor children, extent of impediments if removed to Uganda, ties to the Australian community, and legal consequences of the decision (see generally Reasons [90]-[150]).

After summarising and weighing the considerations for and against cancelling the Applicant’s visa in the national interest, the Minister concluded that the considerations weighing against cancellation were insufficient to outweigh the serious national interest considerations (Reasons [160]).

11 The particular parts of the Reasons relevant to proposed grounds 1 and 2 are summarised below, under the relevant ground.

12 Application for protection visa (Jul 2024): The Applicant was notified of the Minister’s decision on 31 May 2024, and taken into immigration detention on that date. He applied for a protection visa on 23 July 2024.

13 Protection visa application refused; Applicant released on a BVR (Aug 2025): On 6 August 2025, the Applicant’s application for a protection visa was refused by the Department. The Department found that the Applicant was owed protection obligations under s 36(2)(aa) of the Act, but that he did not satisfy the criterion in s 36(1C)(b) (danger to the Australian community). The Applicant was released from immigration detention on that date, on a Bridging R visa (BVR).

14 BVR cancelled (Oct 2025): On 13 October 2025, the Applicant was notified that his BVR had ceased, because he had been granted a visa to the Republic of Nauru on 8 October 2025. He was taken back into immigration detention shortly afterwards.

15 Initially, the Applicant was advised by Australian Border Force on 17 October 2025 that he would be removed from Australia on or after 22 October 2025. However, an email from the Minister’s solicitors dated 21 October 2025 advised that no removal date was scheduled, and that it was not necessary to apply for urgent interlocutory relief.

16 Application for extension of time to review Minister ’ decision (Oct 2025): On 23 October 2025, more than 16 months after the Minister’s decision, the Applicant lodged an application for an extension of time to review the Minister’s decision. The Benjamin affidavit attaches a draft originating application, which contains three proposed grounds:

1.    The Minister’s power in s 501BA was exercised without affording natural justice, which was an unreasonable or illogical exercise of power having regard to the passage of time between the Tribunal’s hearing and decision on 11 April 2022 and the Minister’s decision on 28 May 2024.

Particulars

(i)     Despite the passage of more than 25 months between the Tribunal’s decision and the Minister’s decision, the Minister chose not to afford the applicant natural justice.

(ii)     The consequence of not affording the applicant natural justice was that the Minister was not entitled to assume that certain facts as at the date of the Tribunal’s hearing and decision remained the same, or that the lack of evidence on certain matters as at the date of the Tribunal’s hearing and decision meant that there continued to be a lack of such evidence at the date of his decision.

(iii)     Contrary to the inability to so assume, the Minister made such assumptions throughout his reasons [examples given].

2.    The Minister failed to consider the legal consequence of his decision that the applicant would be subject to indefinite detention.

Particulars

(i)     The consequence of the Minister’s decision was that the applicant would once again be rendered an “unlawful non-citizen” and liable to detention under s 198 of the Act.

(ii)     For so long as there remained a real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future, the applicant would be required to continue to be detained.

(iii)     At the time of the Minister’s decision, the applicant was not the subject of any “protection finding”.

(iv)     Accordingly, under ss 197C(1)-(2) and 198, the applicant was to be removed to Uganda, and to be detained in the meantime.

(v)     The period of detention in the mean time is indefinite, in the sense of not having a fixed chronological endpoint.

(vi)     No part of [148] or any other part of the Minister’s reasons reflect an understanding by the Minister that detention would be indefinite.

3.    The Minister’s decision under s 501BA of the Act was made on 28 May 2024, more than 25 months after the Tribunal’s decision of 11 April 2022 and beyond the temporal limitation that applies to the exercise of power under s 501BA.

B.2    Act s 501BA

17 The Minister’s decision was made under s 501BA of the Act. At the time of the Minister’s decision, s 501BA applied if a delegate of the Minister, or the Tribunal, made a decision under s 501CA (the “original decision”) to revoke a decision under s 501(3A) to cancel a visa that had been granted to a person (s 501BA(1)). (The reference to the Tribunal has since been amended to refer to the Administrative Review Tribunal.)

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

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

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

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

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

19 The rules of natural justice did not apply to a decision made under s 501BA(2) (s 501BA(3)). The power could only be exercised by the Minister personally (s 501BA(4)). The Minister’s decision was not subject to merits review under Pts 5 or 7 of the Act (s 501BA(5)).

B.3    Steps taken between the Tribunal’s decision and the Minister’s decision

20 Proposed ground 3 concerns the period between the Tribunal’s decision (on 11 April 2022) and the Minister’s decision (on 28 May 2024). Ms Stubbs’ affidavit sets out the process by which the Minister made decisions under s 501BA during this period; the steps taken within the Department and the Minister’s office in dealing with the Applicant’s matter; and the Department’s resources and competing demands.

21 General process for making s 501BA decisions: As noted, the s 501BA power is exercised by the Minister personally. At the relevant times, the process for the Minister making decisions under s 501BA involved two steps:

First, the Department would “triage” adverse Tribunal cases and conduct a preliminary assessment of cases by reference to thresholds adopted by the Minister, which described the kinds of cases that would be suitable for a decision under s 501BA. From time to time, the Department would prepare a brief for the Minister relating to a “batch” of Tribunal cases that met these thresholds, for the Minister to decide in which of these cases the Minister wished to consider exercising the s 501BA power.

Second, in respect of those cases where the Minister wished to consider exercising the s 501BA power, the Department would undertake a full assessment of the case, and prepare an individual brief relating to each case.

22 The first step was carried out by the “AAT Set Aside Team” (also known as the “AAT Assessment Team”) within the Complex and Controversial Cases Section (CCCS) in the Character and Cancellation Branch of the Department. The second step was carried out by the National Character Consideration Centre (NCCC) in the Character Branch.

23 Change in Ministerial thresholds (Feb 2020, Mar 2023): At the time of the Tribunal’s decision in 2022, the applicable Ministerial referral thresholds were those endorsed by Minister Dutton in February 2020. A Departmental discussion paper from May 2022 identified that, as at 30 April 2022, there were 402 active cases, 200 of which were yet to be assigned for an assessment against the 2020 referral thresholds.

24 Minister Giles was sworn in on 1 June 2022. On 29 March 2023, Minister Giles endorsed a proposed new set of AAT set aside referral thresholds. The associated brief to the Minister stated (relevantly) that these new thresholds would “ensure that only cases that pose the highest levels of risk and are inconsistent with Australian values such that the ‘national interest’ … is invoked, are considered by you”.

25 Ms Stubbs’ evidence is that, between November 2022 and March 2023, the Department was progressing a Ministerial submission for consideration and endorsement of the March 2023 referral thresholds. She states that no submissions were made to Minister Giles for the exercise of the s 501BA power between 9 June 2022 and 21 April 2023.

26 “Bulk triage” (Apr 2023): In April 2023, the CCCS undertook a “bulk triage” of existing cases, to “fast-track” those cases that would not meet the 2023 thresholds. In May 2023, the Applicant’s case was assessed within the CCCS and marked “proceed to assessment”, as discussed below.

27 Steps taken to deal with Applicant’s matter: The steps taken to deal with the Applicant’s matter between April 2022 and May 2024 were as follows.

28 Previous Minister Hawke asks for s 501BA brief (Apr 2022): After the Tribunal’s decision on 11 April 2022, the CCCS prepared a brief with options for then Minister Hawke, which was provided on 12 April 2022. By 14 April 2022, a Ministerial adviser had requested that the Minister be provided with a submission for the exercise of the s 501BA power.

29 There was an election and change of government in May 2022.

30 Preliminary assessment that Applicant did not meet new threshold s (Oct 2022): In October 2022, an officer assessed that the Applicant’s case would not meet the proposed new threshold for referral. This assessment was carried out as part of an assessment of five cases that had been found to meet the 2020 referral thresholds that were assessed against the proposed new thresholds.

31 CCCS assesses that Applicant meet s 2023 thresholds (May 2023): On 8 May 2023, a CCCS officer assessed that the Applicant’s case did meet the 2023 referral thresholds. That assessment was endorsed by the Assistant Director of the CCCS on 16 June 2023.

32 Minister wishes to consider exercising s 501BA (Oct 2023): Following that assessment, the Applicant’s case was included in a Ministerial brief that sought direction from Minister Giles on whether he wished to consider the exercise of s 501BA in relation to 11 cases that had been previously assessed as meeting the 2020 thresholds, and had been reassessed as meeting the 2023 thresholds. That brief was prepared between 16 June and 31 October 2023. On 31 October 2023, Minister Giles indicated that he wanted to consider exercising s 501BA in respect of a number of cases, including the Applicant’s case.

33 Preparation of brief for Applicant’s case; Minister’s decision (Nov 2023-May 2024): The Applicant’s matter was allocated to a new case officer on 2 November 2023. The process from that point was as follows:

On 16 November 2023, the case officer requested an updated National Criminal History Check, and information from Centrelink (both received on 30 November 2023).

On 6 December 2023, the case officer requested information on whether the Applicant’s domestic violence order was still in force, and that order was uploaded to the Department’s database that day.

On 18 January 2024, a “draft s 501BA submission” was created for the Applicant. A draft was completed by 31 January 2024. Between 20 and 23 February 2024, various changes were requested and made to the submission. A note dated 23 February 2024 stated that a hard copy of the submission would be sent to the Minister the next day.

On 28 May 2024, the Minister signed the decision record and statement of reasons. The decision record states that the Minister spent 1 hour 45 minutes making the decision.

34 Departmental resources; competing demands: Ms Stubbs gives the following evidence about the Department’s resources, and their competing demands.

35 Resourcing and caseloads: In April 2022, there were 12 officers employed in the CCCS, and numbers ranged between 11 and 13 over the relevant period. At any given point in time between April 2022 and May 2024, between one to three officers were responsible for triaging and assessing whether Tribunal decisions should be considered for setting aside.

36 In April 2022, there were approximately 98 FTE (full time equivalent) staff working in the NCCC. That number fluctuated up and down over subsequent years.

37 Ms Stubbs states that, between July 2015 and May 2024, the number of staff employed by the Department in character matters grew from 150 FTE to 195 FTE (around 30%), but the caseload grew from approximately 2,500 cases to 8,000 cases (around 220%).

38 From April 2022, the Character Branch’s resources were focused on reducing, as far as possible, the number of persons whose visas had been cancelled on character grounds held in immigration detention. In practice, that meant that officers focused on non-citizens in immigration detention with unresolved s 501CA requests (revocation of mandatory cancellation). Work on other matters was a lower priority.

39 Change of Government/Minister: Ms Stubbs states that a change of Government and/or the appointment of a new Minister have a considerable impact on day-to-day case work. In the case of personal powers, each Minister (and Government) will have different preferences about what types of cases they wish to consider personally, and how to prioritise high-volume and high-risk case load.

40 In addition, during the relevant period, the Department worked on developing the 2023 referral thresholds. Minister Giles also issued Ministerial Direction No 99 on 23 January 2023. Ms Stubbs states that, while the change in Direction did not directly affect the Applicant, staff members in the Branch would have been redeployed to assist in tasks associated with the new Direction.

41 Impact of judicial decisions: Ms Stubbs also states that the Character Branch’s work is affected by judicial decisions, which require resources to be devoted to identifying and addressing persons who are potentially affected by a decision. She states that, for example, the Full Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 2023 required the Character Branch to review urgently approximately 800 cases, and that almost all the Character Branch’s resources were diverted to this issue between December 2022 and February 2023.

C.    consideration

C.1    Should an extension of time be granted?

42 The first question is whether the Applicant should be granted an extension of time. By s 477A of the Act, the Applicant was required to bring any judicial review application within 35 days of “the date of the migration decision”, meaning in this case the date of the written notice of the Minister’s decision (s 477A(1) and (3), read with s 477(3)(c)). Here, the receipt of the Minister’s decision is dated 31 May 2024. An application for review should therefore have been brought by 5 July 2024. However, the application for an extension of time was not made until 23 October 2025, more than 16 months after the Minister’s decision.

43 Extension of time – general principles: The Court may grant an extension of time if, among other things, the Court is satisfied that it is necessary in the interests of the administration of justice to make the order (s 477A(2)). In assessing the interests of the administration justice, the Court typically considers factors such as the length of the delay, and the reasons for it; the degree of prejudice to the respondent if an extension were granted; and the merits of the substantive case on appeal, if an extension were granted: ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 7 at 19. It will often be appropriate to assess the merits of the proposed appeal at a reasonably impressionistic level, although there may be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment (for example, if the delay is lengthy and unexplained): see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-18.

44 Extent and reasons for delay: The delay here is very substantial; more than 16 months. The Benjamin affidavit sets out the following explanation:

The Applicant says that he was unaware that he could apply for judicial review of the Minister’s decision, and did not understand that option until he re-engaged with Refugee Legal in October 2025 (the most recent time that he was taken into immigration detention).

The Applicant says that a migration agent (Ms Watts) was present on the telephone when he was detained in May 2024, but he says that Ms Watts told him that she was unable to help him in relation to the cancellation, but that he could apply for a protection visa.

The Applicant also says that he contacted Refugee Legal after Ms Watts said she could not assist in relation to the fresh cancellation. He says that he sought the initial assistance of Refugee Legal to lodge his protection visa application in June 2024, and that he reverted back to Ms Watts for the later stages of his protection visa application.

45 This is not a sufficient explanation, particularly given the extent of the delay. A lack of knowledge of time limits (or, I would add, of the availability of judicial review) is not itself a sufficient explanation: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at 6; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at 8; Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1010 at 55. Similarly, an inability to obtain legal advice is not itself a sufficient explanation: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at 35; AZS21 v Minister for Home Affairs [2021] FCA 392 at 16; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at 37.

46 In any event, the Applicant’s own evidence is that he was in contact with Refugee Legal shortly after the Minister’s decision, and they helped him lodge an application for a protection visa in June 2024.

47 Prejudice: There is no particular prejudice to the Minister in granting an extension, other than a systemic interest in judicial review applications being brought in a timely way. However, the absence of prejudice is not, in itself, a reason to grant the extension sought.

48 The focus of s 477A is not on the interests of the applicant, but the broader interests of the administration of justice: Katoa at [12]. At the same time, the Court takes account of the impact on the applicant of the application being unsuccessful (particularly in cases raising protection claims or affecting liberty): see CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610 at [38]-39; AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884 at 23, citing BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at 33 (see 33). Here, the practical consequence of refusing an extension of time is that the Applicant will be removed to Nauru.

49 Merit: The final factor is whether there is merit in the underlying grounds of the application. Although a delay of more than 16 months is very substantial, that extent of delay is not disqualifying in itself: see CZQL at [45]-[55], and the cases cited (considering a delay of more than three years). That said, as the delay is lengthy and not sufficiently explained, the Applicant must demonstrate that his case is strong: Katoa at [18].

50 Conclusion – extension granted: I would grant an extension of time: although the delay is very substantial, the Applicant’s arguments have considerable merit and the impact on his liberty of not granting an extension of time (involuntary removal to Nauru) is severe.

C.2    Whether the Minister’s decision was illogical or irrational (ground 1)

51 Ground 1 contends that the Minister’s decision was illogical or irrational, by reason of the Minister choosing to cancel the Applicant’s visa almost 25 months after the Tribunal’s decision without seeking further information from the Applicant. The Applicant contends that, given the 25 month gap since the Tribunal’s decision, it was illogical or irrational for the Minister to assume that certain facts at the date of the Tribunal’s hearing remained the same, or that the lack of evidence on certain matters at the date of the Tribunal’s decision meant that there continued to be a lack of evidence at the date of his decision.

52 Minister’s reasons (assumptions that circumstances were unchanged): The Applicant refers to the following parts of the Reasons which (it is said) assume that circumstances were unchanged since the date of the Tribunal’s decision.

53 In assessing risk to the Australian community, the Minister made the following statements:

On the Applicant’s mental health, “there were no concerns about his mental health recorded during his incarceration and there is no evidence that [the Applicant] sought or engaged with psychological assistance or has been professionally assessed” (Reasons [47]).

On the risk of the Applicant reverting to abusing alcohol in the community, the Minister had “substantial reservations about [the Applicant’s] ability to abstain from alcohol in the community, where it will again be easily accessible to him” (Reasons [57]). The Minister also stated that he was not satisfied that the Applicant’s “participation in one treatment program has resolved his long term issues with alcohol”, and while the Applicant “abstained from alcohol in prison and immigration detention, [the Minister was] guarded about his ability to abstain from alcohol in the community outside the constraints of a supervised environment” (Reasons [62]).

The Minister noted that the Applicant “has not participated in programs specific to domestic/family violence and that there is an ongoing risk that he would engage in further violent offending, including family violence offending” (Reasons [66]).

The Minister found that “the risk factors associated with [the Applicant’s] offending, namely his issues with alcohol use and anger management, are unresolved and ongoing” (Reasons [75]).

54 Similarly, the Minister’s conclusions on national interest consideration s included that the Applicant “has not engaged in treatment intervention that is specific to family violence offending and has engaged in limited treatment intervention to address his issues with alcohol”, and the Minister was “not satisfied that [the Applicant] has addressed his alcohol and anger management issues sufficiently so as not to pose a risk to the community, in particular women” (Reasons [85]). And the Minister’s conclusions included “I have considered that [the Applicant] has not participated in treatment intervention that is specific to family violence offending and the risk factors associated with his offending, being his alcohol and anger management issues, are unresolved” (Reasons [155]).

55 The Minister submits that these statements on risk to the community must be read in the light of the fact that the Minister expressly recognised that the Applicant had been in the community since April 2022, and had not been convicted of any further offending since his 2020 convictions. The Minister was also cognisant that the Applicant “[was] currently on conditional liberty in the community”, in that he was subject at the time to a Protection Order that expired in 2025 (Reasons [60]).

56 The Minister made the following statements on the best interests of minor children consideration:

The Tribunal had found no evidence of a strong relationship between the Applicant and his third child, and the Minister saw no reason to depart from that view (Reasons [99]).

Whether it was in the best interests of the Applicant’s minor children that his visa not be cancelled was conditional on the Applicant’s ability to abstain from alcohol and manage his anger, and to ensure that the children are not directly or indirectly exposed to family violence perpetrated by their father. The Minister was “guarded about [the Applicant’s] ability to abstain from alcohol or refrain from violent behaviours” (Reasons [101]).

The Minister was not satisfied that the Applicant had played a consistent or significant role in his nieces’ and nephews’ lives, and noted that there were “no representations from the parents of any of [the Applicant’s nieces and nephews] to confirm the extent of these relationships and whether they remain positive and ongoing” (Reasons [106]). The Minister gave the best interests of the nephews and nieces minimal weight, because these children had their own parents, and the Applicant’s “involvement in their lives appears to be occasional and incidental to their development” (Reasons [107]).

57 Finally, in considering the Applicant’s ties to Australia, the Minister stated:

The Tribunal noted that none of the mothers of the Applicant’s children was presently his partner (Reasons [125]). (However, the Benjamin affidavit states that, at the time of the Minister’s decision, the Applicant was planning to marry his partner, who was five months pregnant.)

The Minister noted that the Applicant had not identified any other close friends or social/community ties to Australia, apart from his family members, the mothers of his children, and a letter of support from Mr Parker at Aussie Pride Restorations (Reasons [128]).

The Minister stated that “[n]o further evidence … has been provided”, apart from the Applicant’s own statements, that he converted to Christianity in Australia and regularly donates blood to the Red Cross in Melbourne (Reasons [135]).

58 Illogicality or irrationality and s 501BA: The ground of illogicality or irrationality imposes a demanding standard, and it is necessary for the Applicant to establish that there is no probative basis for the decision, or at least a critical step in the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [33]-35; XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [64]-65; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]-109.

59 Section 501BA contemplates some “stale information”: However, an assessment of illogicality or irrationality takes account of statutory context. Here, s 501BA(3) permits the Minister (acting personally) to set aside a positive Tribunal decision and cancel a person’s visa, without providing procedural fairness. This feature of s 501BA contemplates that a decision may be made with less than the full picture, including on the basis of stale information: see EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492 at [37], [44], 64 (considering corresponding provisions in s 501(3)-(5)), applied to s 501BA in Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24 at 68; GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 at 39; CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480 at [69], 80; Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517 at 128; BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600; (2025) 310 FCR 606 at 47; EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155 at 45; Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6 at 47.

60 The period between the Tribunal’s decision and the Minister’s decision in this case is much longer than in the cases set out above. In those cases, the information considered by the Minister was 10 months old (EUF20 at [64], GRCF at [40]), or the Minister’s decision was made between four and 13 months after the Tribunal’s decision: see BTLD at [2]-[3] and Taylor at [3]-4, Chapman at 62, CMP25 at 68, EUD24 at 40, Luong at 3. Here, by contrast, the Minister’s decision was made 25 months after the Tribunal’s decision. In Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156, the Minister’s decision was made just over two years after the Tribunal’s decision; however, the Minister had on several occasions sought representations from the appellant in that case (see Palmer at [15]-[25]).

61 Notwithstanding the reasoning in EUF20 (as applied to s 501BA), relying on out of date information when making a s 501BA decision may amount to jurisdictional error in two circumstances.

62 Cannot make unwarranted assumptions about current circumstances: First, jurisdictional error can arise if the Minister makes unwarranted assumptions about the circumstances at the time of the s 501BA decision, based on evidence at the time of the Tribunal’s decision. In GRCF, the Minister’s reasons stated that the applicant in that case “ has not continued seeking psychological treatment or counselling to address his mental health and psychological function” and “ has taken only limited steps towards rehabilitation”: GRCF at [47], 49. Bennett J held that these statements contained material error: GRCF at [52].

The only evidence on that topic before the Minister was evidence provided to the Tribunal some 10 months earlier: GRCF at [40]. Bennett J held that the Minister’s statements purported to assess the applicant’s steps towards rehabilitation at the time of the Minister’s decision, but there was no evidence as to what had happened in the preceding 10 months, nor was there any material on which a logical inference could be drawn: GRCF at [52].

GRCF turned on the interpretation to be given to the Minister’s reasons: Bennett J held that the Minister could lawfully have confined himself to incomplete information about the steps that GRCF had taken to seek psychological treatment and counselling at the time of the Tribunal’s decision, and made a logical conclusion or inference arising from that information. However, on a fair reading of the Minister’s reasons, the Minister proceeded on the positive basis that the position as it was 10 months earlier persisted at the time of his decision: GRCF at [51].

63 A similar error occurred in Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239. The Assistant Minister in that case made a decision under s 501BA without seeking further information from the applicant. The Assistant Minister adopted a psychologist’s assessment of the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment of risk. Justice Neskovcin held that the Assistant Minister impermissibly took into account, adversely to the applicant, a lack of information about whether the applicant had addressed his mental health concerns or developed meaningful employment or leisure pursuits: Ba at [95]-[96], read with [87].

64 Recently, in XPLW v Minister for Immigration and Multicultural Affairs [2026] FCA 210, the Minister made a decision under s 501BA more than two years after the Tribunal’s decision: XPLW at [9]-[10]. In assessing risk to the community, the Minister stated that it “remains of concern” that “some of [the applicant’s] family require ongoing care and support and have indicated an intention to rely heavily on [the applicant] for that support, suggesting he will be subject to significant resulting stress and pressure for the foreseeable future”: XPLW at [67]. The Minister also referred to a psychologist’s report that the applicant’s major depressive order “was not fully resolved and required ongoing treatment”: XPLW at [68]. Justice Horan held that it was not legally open for the Minister to make these findings.

These specific findings were directed to the current state of affairs at the time of the Minister’s decision in 2025, relying only on evidence of facts and circumstances that existed over two years before the Minister’s decision. The matters to which that evidence was directed were inherently transient and variable in nature; for example, there was a strong possibility that the applicant’s sister (who previously required care and support) might have died since the Tribunal’s decision: X PLW at [70]-[72].

On the material before the Minister, it was irrational to assume that the applicant had significant caring responsibilities and ongoing mental health treatment needs as at the time of the decision, based on evidence of past circumstances which were patently of a limited temporal duration. Without further evidence, it was entirely speculative whether, at the time of the Minister’s decision, the applicant remained under stress or pressure due to his current family circumstances or continued to have ongoing mental health needs: XPLW at [89].

65 By contrast, in Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342, Wheatley J held that there was no error in the Minister’s conclusion that he remained concerned that the applicant in that case would be unable to refrain from substance abuse, noting records of the applicant’s continued use of alcohol while in immigration detention and notwithstanding his engagement with rehabilitative programs and courses. This was simply a finding about past conduct (that the applicant had still used alcohol while in a controlled environment and completing rehabilitative courses), and that finding was probative as to the extent of risk in the future: Manebona at [50], [56]. Similarly, in Fetelika v Assistant Minister for Immigration [2025] FCA 1249, Goodman J held that there was no error in the Minister’s statement that the applicant “does not appear to have sought a referral to a psychologist to develop his emotional coping skills, as was recommended by [a psychologist who examined him]”. The Minister was “proceeding on the basis of information which was correct at the date of the Tribunal’s decision, but which he chose not to update, rather than proceeding on the basis that the position which obtained at the time of the Tribunal’s decision continued at the time of the s 501BA decision”: Fetelika at [54].

66 Use of out of date information is subject to legal reasonableness: Second, and more broadly, the ability to take into account stale information under s 501BA is subject to an overriding requirement of legal reasonableness. The reasoning in Luong indicates that there will be a point at which information is so out of date that it can no longer support a rational decision under s 501BA. The Full Court stated:

(a) The power in s 501BA must be exercised reasonably. However, because s 501BA(3) of the Act expressly excludes the rules of natural justice, legal unreasonableness cannot be invoked as a ground of review in a manner that seeks indirectly to confer an entitlement to procedural fairness: Luong at [41].

(b) Section 501BA contemplates that the Minister may decide to cancel a non-citizen’s visa without up to date information where the Minister elects not to afford natural justice to the non-citizen: Luong at [47].

(c) However, legal unreasonableness “may arise where there is adverse reliance by the Minister on out of date information on a matter as a proper basis for cancelling a non-citizen’s visa without giving the non-citizen an opportunity to provide up to date information on that matter”: Luong at [48]. GRCF and Ba could be seen, in substance, as examples of this principle: Luong at [104]. That is, the more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness: GRCF at [41], quoting LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 at 48.

67 In Luong, it was not legally unreasonable for the Minister to make a decision under s 501BA without seeking further information about the appellant’s rehabilitation. That is because the Minister did not treat rehabilitation as a matter that was adverse to the appellant’s case but rather considered it in a manner that was favourable to the appellant. The Tribunal in that case noted that the appellant had not been convicted of any further offences while he was in the community, and that he may have undertaken further rehabilitative efforts during that period: Luong at [101].

68 Consideration of findings on risk of reoffending: Turning to the Minister’s reasons, the most central of the matters raised by ground 1 is the Minister’s findings concerning the Applicant’s risk of re-offending (see [53 ]-[54 ] above). Unlike Luong, these findings were adverse to the Applicant. As noted, the Minister says it is important that the Reasons expressly recognise that the Applicant had been in the community since April 2022, and was currently “on conditional liberty” (that is, subject to a Protection Order) (Reasons [60]).

69 The Minister’s findings concerning the risk of re-offending contain two broad conclusions.

70 Applicant’s rehabilitative programs: First, the Minister found that the Applicant had not attended programs specific to domestic violence or treatment of alcohol issues, and therefore his anger management and alcohol issues were unresolved:

(a) The Applicant “ has not participated in programs specific to domestic/family violence and that there is an ongoing risk that he would engage in further violent offending, including family violence offending” (Reasons [66]).

(b) The risk factors associated with the Applicant’s offending, “namely his issues with alcohol use and anger management, are unresolved and ongoing” (Reasons [75]).

(c) The Applicant “ has not engaged in treatment intervention that is specific to family violence offending and has engaged in limited treatment intervention to address his issues with alcohol”, and the Minister was “not satisfied that [the Applicant] has addressed his alcohol and anger management issues sufficiently so as not to pose a risk to the community, in particular women” (Reasons [85]).

(d) The Minister considered that the Applicant “ has not participated in treatment intervention that is specific to family violence offending and the risk factors associated with his offending, being his alcohol and anger management issues, are unresolved” (Reasons [155]).

71 The Minister contends that the Minister’s reference was simply an observation of the courses that the Applicant had not done based on the historical information before it, not a finding that the Applicant had not done (between the Tribunal’s decision and the Minister’s decision) any domestic/family violence specific programs, relying on Manebona. However, in Manebona, the fact that the applicant had in the past used alcohol even in a supervised environment and while undertaking some rehabilitative courses was probative of future risk, regardless of what had happened since then.

72 With this first group of findings, the most natural reading of the emphasised words in (a), (c) and (d) above indicate that the Minister proceeded on the positive basis that the position as it was before the Tribunal (some 25 months earlier) persisted at the time of his decision; the error identified in GRCF. Nor did the Minister refer to any evidence that would provide a logical basis to infer that the Applicant had not sought treatment during the previous 25 months. And as in Ba, the Minister took into account adversely to the Applicant a lack of information about whether the Applicant had addressed his anger management issues and alcohol issues. It is true that, in Ba, the Minister expressly stated that there was no evidence before him about whether the applicant in that case had treated his mental health concerns, or developed meaningful employment and leisure pursuits: Ba at [88]. But necessarily implicit in what is said in the passages above (expressed as a statement of the current situation) is that the Applicant has not undertaken any other courses.

73 It is also true that this case is not dissimilar to Fetelika, where similar words were interpreted as the Minister choosing to proceed on the basis of information that was not up to date. However, the period between the Tribunal’s decision and the Minister’s decision in that case was approximately 15 months (see Fetelika at [9], [13]), whereas the corresponding period here is 25 months. If the Minister here sought to attach significance to the position 25 months ago, without any regard to whether it was still an accurate statement, then that would create its own difficulties.

74 These findings went to an important matter relevant to assessing risk. Given the broad and evaluative nature of the s 501BA power, this error was material: see GRCF at [52].

75 Risk of Applicant reverting to alcohol: The second broad conclusion to be drawn from the findings summarised in [53 ]-[54 ] above was that the Minister expressed reservations about the Applicant’s ability to abstain from alcohol in the community:

The Minister had “substantial reservations about [the Applicant’s] ability to abstain from alcohol in the community, where it will again be easily accessible to him” (Reasons [57]).

The Minister was not satisfied that the Applicant’s “participation in one treatment program has resolved his long term issues with alcohol”, and while the Applicant “abstained from alcohol in prison and immigration detention, [the Minister was] guarded about his ability to abstain from alcohol in the community outside the constraints of a supervised environment” (Reasons [62]).

76 The Minister contends that the reference to the constraints of a supervised environment is a reference to the fact that the Applicant was subject to a Protection Order. However, Reasons [59] makes clear that the Minister is referring to immigration detention or prison, as the Minister stated the Applicant’s primary offending:

consists of family violence and the supervised environment and behaviour/dynamics of prison and immigration detention are quite different from the situation of a domestic environment and not indicative of rehabilitation in relation to family violence. (emphasis added)

Thus, even if the Applicant had been in the community subject to a Protection Order, alcohol had been readily accessible to him, and he had been outside the supervised environment of immigration detention or prison.

77 The Minister in oral submissions emphasises that illogicality and unreasonableness are demanding standards of review; that s 501BA permits the Minister to rely on information that is not up to date; that the Applicant had a long-standing issue with alcohol; and that the Minister’s findings were appropriately qualified (that he had “substantial reservations” and was “guarded” about the Applicant’s ability to abstain from alcohol outside the supervised environment). All these matters may be accepted.

78 However, the Minister’s statements set out above do not acknowledge that, by the time of the Minister’s decision, the Applicant’s ability to abstain from alcohol had been tested in the community for 25 months. (The Minister recognised elsewhere that the Applicant had been in the community since April 2022.) This is not to say that the Minister was obliged to find that the Applicant’s alcohol issues were resolved, but 25 months is a sufficiently long period that it could not be ignored altogether: cf EUD24 at [49]. The particular issue here – whether the Applicant could abstain from alcohol in the community – was both highly important, and an issue where the position could potentially change significantly over the course of 25 months, such that 25 months provides a meaningful data point for a decision. The issue was inherently variable (albeit not transient): cf XP L W at [72]. (There may be other issues relevant to an assessment of risk that could be expected to remain the same over that period.) Accordingly, this was a matter that required some explanation, but there was none.

79 To be clear, s 501BA does not require the Minister to obtain the most up to date information, and legal unreasonableness is a demanding standard of review. Here, the extent of the delay (25 months), the centrality of the issue, and the fact that 25 months provides a meaningful data point for that issue, means that it was legally unreasonable for the Minister to rely solely on out of date information to reach a decision on the risks of the Appellant reverting to alcohol. That in turn was a critical step in the Minister’s reasons, and this error was also material.

C.3    Whether the Minister failed to consider the legal consequences of the decision (ground 2)

80 Ground 2 contends that the Minister failed to consider the legal consequence of the s 501BA decision of subjecting the Applicant to prolonged immigration detention of uncertain duration.

81 Minister’s reasons (legal consequences): The Minister’s reasons on the legal consequences of his decision can be summarised as follows.

The Minister considered the Applicant’s claims that he would be at risk of persecution in Uganda (Reasons [138]-[141]). The Minister accepted for the purpose of the decision that there was a possibility that non-refoulement obligations are enlivened in respect of the Applicant, and that his removal to Uganda may potentially breach those obligations (Reasons [143]).

The Minister stated that it was open to the Applicant to apply for a protection visa, which is the key mechanism provided by the Act for considering protection claims. Provided the Applicant made a valid visa application, “the duty to remove him under s 198 of the Act would not apply while his application is being determined” (Reasons [143]-[144]).

The Minister was cognisant of the possibility that the Applicant may be refused a protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. That is, the character concerns about the Applicant, which the Minister considered in deciding to cancel his visa under s 501BA, were likely to be also considered in the context of any protection visa application. However, even if the Applicant was not granted a protection visa, any protection finding made for him in the course of considering his protection visa application in respect of Uganda would prevent him from being removed to that country, except in the limited circumstances set out in s 197C(3)(c) (Reasons [146], [149]).

The Minister stated (Reasons [148]) that he was:

aware that the statutory consequence of a decision to cancel [the Applicant’s] visa is that, as an unlawful non-citizen, [the Applicant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, remain or be liable to detention under s189 of the Act.

The Minister found that “the possibility of [the Applicant] applying for a Protection visa and being found to be a person in respect of whom Australia has international non-refoulement obligations weighs against cancellation, but the speculative nature of this consideration limits the weight I give it at this time” (Reasons [150]). And in his conclusions, the Minister stated that one factor weighing against cancelling the Applicant’s visa was “the possibility that he could be recognised as a person in respect of whom Australia has non-refoulement obligations (further noting that in this event he would not be removed from Australia)” (Reasons [154]).

82 Obligation to consider legal consequences of s 501BA decision: A decision-maker is generally obliged to consider the legal consequences of a decision: see WKMZ at 120, citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [8]-10 and Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84]-88. However, there has been some dispute over whether the Minister is obliged to consider the legal consequences of a s 501BA decision: CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199 (CMP25 FC) at 18.

The breadth of the “national interest” criterion in s 501BA means that there are few, if any, considerations that are mandatory: see Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at 61; Palmer at [43]-44.

In addition, the s 501BA power can be exercised without providing procedural fairness (as here) (s 501BA(3)), and even if the Minister seeks representations from the person, the Minister is not obliged to consider them: Palmer at [69]-70. Accordingly, cases such as Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, about the obligation to consider matters raised in a person’s representations, are not applicable.

83 By contrast, in XPLW, the Minister does not appear to have disputed that it was necessary to consider the legal consequences of a s 501BA decision: XPLW at [47]. In that case, the applicant again argued that the Minister’s decision was illogical or irrational because he did not explain why he did not give any weight to the legal consequences of cancelling the applicant’s visa as a factor in favour of not cancelling the applicant’s visa: XPLW at [48]. Justice Horan held that the Minister was not required to speculate about the period for which the applicant might be detained while any protection visa application was assessed. And, having expressly averted to the statutory duty to detain unlawful non-citizens pending their removal from Australia, the Minister could be taken to have understood that the applicant would be detained while any protection visa application was considered: XPLW at [58]. Although the Tribunal in that case (as here) had treated the prospect of further detention as a factor weighing heavily in favour of revoking the cancellation decision, it was open to the Minister to take a different approach to the facts of the case: XPLW at [59].

84 In any event, it is well-established that the s 501BA power is subject to the requirements of legal reasonableness. In CMP25 FC, the Minister, after considering the legal consequences of cancelling the appellant’s visa under s 501BA, gave this consideration no weight: CMP25 FC at [14]. The Full Court held that the primary judge did not err in concluding that it was not unreasonable, illogical or irrational for the Minister to give no weight to the legal consequences of the decision: CMP25 FC at [27].

The Minister was plainly aware in CMP25 FC that, by reason of ss 189 and 198 of the Act, the inevitable and direct legal consequence of the decision was that the appellant would become an unlawful citizen who would be liable for immediate removal and, in the meantime, detention. The Minister was conscious that there were a number of permutations that could arise which meant that it was not known how long the appellant would remain in detention: CMP25 FC at [27]. (The appellant in that case had not been the subject of any protection findings, and he was barred by s 48A from making a further application for a visa, including a protection visa.)

The Full Court did not accept that the position was one where the appellant would be subject to a period of “indefinite detention”. Rather, the position was that the appellant would remain in detention, until removed. Further, the language of “indefinite detention” must be viewed in light of the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137, which held (at [55]) that the detention of a non-citizen will not be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future: CMP25 FC at [29].

The Full Court approved the reasoning of the primary judge that, due to the number of uncertainties, there was no error in the Minister attributing no weight to that factor: CMP25 FC at [30].

85 Similar to CMP25 FC at 29, in Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146; (2024) 306 FCR 271 at [159], the Full Court doubted whether any failure to have regard to the appellant’s representations about indefinite detention would be capable of giving rise to legal error, in the light of NZYQ.

86 Minister sufficiently considered legal consequences: Applying those principles to this case, I would also hold that the Minister sufficiently considered the legal consequences of cancelling the Applicant’s visa under s 501BA. Although CMP25 and XPLW were directly concerned with arguments about legal unreasonableness, the interpretation of the Minister’s reasons in those cases applies equally here.

As with CMP25 FC, the Minister here was plainly aware that, by reason of ss 189 and 198 of the Act, the inevitable and direct legal consequence of the decision was that the Applicant would become an unlawful citizen who would be liable for immediate removal and, in the meantime, detention (Reasons [148]).

As with CMP25 FC, the Minister was conscious that there were a number of permutations that could arise which meant that it was not known how long the Applicant would remain in detention (Reasons [144]-[146]).

Unlike CMP25 FC, the Applicant here had a right to apply for a protection visa (whereas the appellant in CMP25 FC needed to persuade the Minister to lift the bar on further visa applications in s 48A). Even so, at the time of the Minister’s decision (in May 2024), the Applicant had not applied for a protection visa, and therefore was not yet the subject of protection findings preventing his removal to Uganda under s 197C (although the Minister expressly noted that possibility: Reasons [146], [149]). At that time, the consequences of the Minister’s decision was that the Applicant would remain in detention, until removed, as in CMP25 FC.

87 In any event, two Full Court decisions have doubted whether a legal consequence of a decision can be “indefinite detention”, following NZYQ: CMP25 FC at [29]; Galuak at [159]. As a single judge, I would not depart from these statements.

88 The Applicant contends, however, that the Minister did not give “active intellectual consideration” to legal consequences, and observes that legal consequences are a mandatory consideration, in the sense used in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24: NBMZ at [6], 8. The short answer is that the test of active intellectual consideration (even assuming it applies here) does not permit the Court to delve into the merits of the Minister’s decision: Plaintiff M1/2021 at 26. Once it is appreciated that the Minister correctly understood the legal consequences of his decision, to require anything further is only to challenge the merits: see XPLW at [59].

C.4    Whether the Minister’s decision was made within a reasonable time (ground 3)

89 Ground 3 contends that the Minister’s decision is invalid because it was not made within a reasonable time of the Tribunal’s decision to re-instate the Applicant’s visa. This ground relies on the decision of Horan J in XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553, which has been applied by Kennett J in Hood v Assistant Minister for Immigration [2025] FCA 1336, by me in Song v Minister for Immigration and Citizenship [2025] FCA 1351, and by Horan J in XPLW.

90 XMBQ (FC) – no implied time limit: In XMBQ, Horan J held that there was an implied requirement that the power in s 501BA to set aside an original decision (here, a Tribunal decision) and cancel a person’s visa could only be exercised within a reasonable time of the original decision.

91 After the hearing in this matter, the Full Court in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19 (XMBQ (FC)) overturned the decision of Horan J, and held that s 501BA is not subject to any implied time limit: XMBQ (FC) at 2, 117, with Bromwich J agreeing with both. The Applicant formally submits that XMBQ (FC) is incorrect, but accepts that I am bound by that decision. For that reason, ground 3 must fail.

92 However, the parties have agreed that there would be utility in the Court making findings of fact on whether the Minister’s decision was made within a reasonable time, in case XMBQ (FC) is appealed to the High Court.

93 Determining what is a “reasonable time”: The Full Court in XMBQ (FC) did not make any comments about how a reasonable time would be measured, so I will continue to apply the approach of Horan J in XMBQ (as applied in Hood, Song and XPLW). His Honour made the following general observations in XMBQ about what amounts to a “reasonable” time in the context of s 501BA of the Act.

(a) The question of whether the Minister has exercised the power under s 501BA(2) within a “reasonable time” after the Tribunal’s decision involves an objective assessment having regard to the facts and circumstances of the particular case: XMBQ at [169].

(b) Past cases on whether there has been unreasonable delay in the performance of statutory duties (such as Thornton v Repatriation Commission (1981) 52 FLR 285 and Patrick v Australian Information Commissioner [2024] FCAFC 93; (2024) 304 FCR 1) may provide some guidance; however, s 501BA does not confer a duty (but is a non-compellable power). For that reason, the threshold is not necessarily couched in terms of whether or not the delay is “in consequence of neglect, oversight or perversity”: XMBQ at [169].

(c) Delay is assessed from the time that the s 501BA power became available; that is, the date of the original decision: XMBQ at [173]. The question is whether the period as a whole was within a reasonable time, rather than disaggregating that period by breaking it down into separate components: XMBQ at [171].

(d) It is important to allow sufficient time to enable proper consideration of the significant issues raised by the potential exercise of the s 501BA power: XMBQ at [174]. However, there may be circumstances in which delay in exercising the s 501BA power is prima facie unreasonable in the absence of a satisfactory explanation (in which case, the Minister may have a “persuasive” onus): XMBQ at [170].

(e) The volume of cases and resources available to the Department may be relevant but is not determinative. Similarly, it may be relevant, but not determinative, to have regard to any competing priorities and their associated demands on the Department and the Minister. However, the “cohort” of s 501BA cases would often be expected to raise exceptional and pressing circumstances, which should usually attract a relatively high priority: XMBQ at [176]. For that reason:

the potential exercise by the Minister personally of the power in s 501BA(2) to set aside an original decision should not be subsumed or submerged in the overall business of the Character and Cancellation Branch or the Department generally, in an attempt to justify prolonged delay by reference to a “backlog” of cases or the need to update general Departmental guidelines and templates.

94 In addition, Horan J made some specific comments about the circumstances in XMBQ that are relevant to this case as well:

The outcome of the federal election in May 2022, including the change in Minister, did not provide a reasonable explanation for the ongoing delay in the exercise of power under s 501BA(2) in relation to the applicant. The change in Minister was relevant, but did not explain the delay of almost one year before a s 501BA submission was provided to the Minister in relation to the applicant: XMBQ at [182].

The commencement of a new Ministerial direction is capable of having an impact on the progression of cases under s 501BA. However, Horan J was sceptical of the bald assertion that all cases must be placed on hold until the new Ministerial direction can be assessed and “templates” are updated and cleared, let alone that all such cases must be “restarted”. There was no indication how the changes to the Ministerial direction affected the applicant’s case, and it took more than a year before the Minister was provided with a s 501BA submission in relation to the applicant: XMBQ at [183].

The generalised disruption and diversion of resources from cases such as Pearson was too generalised, and did not adequately explain or justify the lengthy delays in the progression or consideration of the possible exercise of the s 501BA(2) power in relation to the applicant: XMBQ at [184].

95 Each of these comments applies equally to evidence given by Ms Stubbs in this case: see [39 ]-[41 ] above.

96 Timing of key events: Ms Stubbs’ evidence (summarised in section B.3 above) establishes that the key events occurred on the following dates.

(1) The Tribunal’s decision was made on 11 April 2022, and written reasons provided on 9 May 2022.

(2) By 14 April 2022, the previous Minister had been provided with an options brief in relation to the Applicant, and that Minister had requested a submission for the exercise of s 501BA: see [28 ] above. (There was then an election and change of government in May 2022.)

(3) By 16 June 2023, the CCCS had assessed that the Applicant met the 2023 referral thresholds: see [31 ] above.

(4) By 31 October 2023, the CCCS had prepared a brief assessing the Applicant (and others) against the 2023 thresholds, and the Minister had decided that he wanted to consider exercising the s 501BA power in relation to the Applicant (among others): see [32 ] above.

(5) By 23 February 2024, the NCCC had prepared a s 501BA brief for the Minister in respect of the Applicant: see [33 ] above.

(6) On 28 May 2024, the Minister made the decision under review.

97 That is, the initial assessment by the CCCS of the Applicant’s case against Ministerial thresholds took 14 months (12 April 2022 to 16 June 2023), obtaining a decision from the Minister to consider exercising s 501BA in respect of the Applicant took another four and a half months (16 June 2023 to 31 October 2023), then preparing a brief in relation to the Applicant and the Minister making a decision took almost another seven months (2 November 2023 to 28 May 2024). The entire period is more than 25 months.

98 Ms Stubbs’ evidence discloses some periods of apparent inactivity in the Applicant’s matter. First, Ms Stubbs states that no submissions were sent to Minister Giles for the exercise of the s 501BA power between 9 June 2022 and 21 April 2023 (more than 10 months), during which period the Department was developing what became the 2023 thresholds: see [25 ] above. Second, it seems to have taken three months (from 23 February 2024 to 28 May 2024) for the completed brief in the Applicant’s matter to be put before the Minister: see points (5) and (6) in [96 ] above. The Minister submits that much of this first period can be explained as the new Minister seeking a “reset” in the exercise of personal powers; however, the Applicant correctly submits that Ms Stubbs’ oral evidence made clear that it was the Department who was driving the new 2023 thresholds, to make the decision-making process more efficient. In any event, the need to update and revise policies is an ordinary part of government and, while relevant, is not a complete answer to arguments about delay: see XMBQ at [182].

99 Mini ster’s arguments: The Minister contends that the proper question is whether the delay is satisfactorily explained, and that should be assessed across the backdrop of changes in Government and Minister and the development of new referral thresholds after the appointment of a new Minister. The Minister relies particularly on the following matters:

(a) There was an institutional and process “reset” after the election of the new Government. Not only did a change of government have an impact on the way in which “national interest” decisions would be undertaken but the change in process had an impact on positions adopted in respect of any one applicant (including the Applicant in this case).

(b) Resourcing constraints did have an impact at points throughout the process. Where choices were made to prioritise other cases of equal if not greater importance (notably individuals who, unlike the Applicant, were in detention), the length of time taken to address such other cases was inherently reasonable. Where the question to be answered is the reasonable length of time taken to make a decision, the Court should be slow to conclude that such a “reasonable” period cannot include periods where the Executive determines to focus on cases of greater sensitivity or priority.

(c) There is no evidence, and the Court should draw no inference, about any deliberate strategy on the part of the Department to under-resource the management of decision-making. This Court cannot, and should not, assess a reasonable period by reference to the Court’s own assessment of what the Executive should determine about priorities.

(d) The same limitation applies to the Court’s consideration of the question about changes in governmental policy, particularly where it deals with how applications are to be assessed and by what criteria they are to be administered. A reasonable period must take into account the Executive’s “margin of appreciation” in determining changes and applying them.

100 Was t he Minister’s decision made within a reasonable time? Here, the period taken to make a decision under s 501BA (over 25 months) is sufficiently long that the Minister has a “persuasive onus” to explain this delay: see XMBQ at [170]; Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 496 at 55.

101 Resources as a justification: As noted, the Minister’s arguments depend centrally on the limits on the resources available to the Department, and the CCCS in particular, to deal with a large number of adverse Tribunal decisions that required assessment. The Minister contends, in substance, that it is for the Executive, not the Courts, to determine how to allocate resources between the competing priorities of the Department. The Minister contends that the Department’s allocation of resources cannot be considered unreasonable, and therefore there has not been any unreasonable delay.

102 I considered this issue in Song at [83]-[87]. In summary:

(a) It can be accepted that an explanation for a delay is relevant, and that resourcing is one relevant consideration in assessing whether delay is unreasonable: Patrick at [29]-[30], [37].

(b) However, there is a limit beyond which a delay is unreasonable, regardless of resourcing being the explanation for it: Patrick at [32]; Wei v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 268; (1991) 29 FCR 455 at 477 (Neaves J).

(c) For that reason, Horan J held in XMBQ at [176] that the volume of cases and the resources available to the Department, and competing priorities, are all relevant to the question of whether a decision has been made within a reasonable time, but are not determinative. As Kennett J stated in Hood at [35]:

A “reasonable time” for the exercise of a discretionary power, in this context, is a statutory limit which cannot expand infinitely to accommodate the level of resources which the Minister or the government allocate to its consideration. It is a statutory limit implicit in a provision which, as Horan J noted, was envisaged as dealing with circumstances of urgency and providing for swift and decisive action.

(d) This issue about available resources presents different issues when, as here, the power is one that the Minister may exercise, but is not required to. When the government must make a decision on every application before it, it is common to ask whether the delay in a particular case is for a considered reason and not in consequence of neglect, oversight or perversity. But different issues arise if the Minister is under no obligation to exercise the power at all, as with s 501BA: Hood at [34].

(e) The power in s 501BA is extraordinary in nature: it is normally exercised at the end of a full merits proceeding in the Tribunal (now the Administrative Review Tribunal), and allows the Minister to substitute an adverse decision for the non-citizen, without procedural fairness, on the largely political grounds of national interest. The default position under the Act is that the decision of the Tribunal, where merits review is available, is the final step in the scheme for making the relevant decision. Although that default position is subject to Ministerial override, the potential exercise of the s 501BA power should not be seen as a routine step; it should be exceptional. If the Minister does not exercise the s 501BA power within a reasonable time, the result is that the default position continues to apply, and the Tribunal’s decision stands.

103 Issue is not simply whether delay was unreasonable: For these reasons, the question of whether the Minister’s decision has been made within a reasonable time is not the same as asking whether there is a satisfactory explanation for the delay (although the existence of an unreasonable delay will mean that the time taken is not reasonable): see XMBQ at [172]. In other words, there are situations where a lack of resources may explain the period taken to make a decision, but the decision still has not been made within a reasonable time: Song at [89], and the cases cited. That is because what is “reasonable” takes into account not only the reasons for delay, but also the effect of a s 501BA decision on the former visa holder; and the protective purpose of a decision under s 501BA (which favours exercising the s 501BA power within a shorter, rather than a longer, period). On that last point, the Minister correctly points out that s 501BA operates by reference to the “national interest”, which is not confined to matters of protection. Even so, the pre-eminent factor in the Minister’s assessment of the national interest and the s 501BA discretion in this case was the protection of the community (see Reasons [155]-[160]). The purposes of this decision in turn is relevant to whether the exercise of the power was made within a reasonable time, in the circumstances of this case.

104 Instead, the question is whether the delay is such that, objectively assessed, the Minister’s decision can no longer be seen as responding to or addressing the original decision, so as to deny the connection to the original decision that is required by the purpose of the power: XMBQ at [170], [172]. The features of the Minister’s decision considered in ground 1 (that the decision was made without notice 25 months after the Tribunal’s decision, but purported to make findings on variable factors such as the Applicant’s ability to abstain from alcohol in the community) suggest the nexus between the Minister’s decision and the Tribunal’s decision is broken: see Song at [90]-[91].

105 Comparison with other cases: The question of whether a decision has been made within a reasonable time is a question of mixed fact and law, and therefore the results of other cases do not establish any general rule or principle: XMBQ at [186]. Even so, it is useful to consider the results of other cases, to ensure that any apparent difference in result can be explained.

Both XMBQ and Hood held that the Minister’s decision had not been made within a reasonable time, when it was made (respectively) 38 months, and four years and nine months, after the Tribunal’s decision. (Eswaran held that there was a reasonable explanation for a s 501BA decision made 47 months after the Tribunal’s decision; however, I give less weight to that judgment, because it approached the question as whether the delay was in consequence of neglect, oversight or perversity: see Song at [69]-[70], [93].)

Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471 held that there was no unreasonable delay in making a s 501BA decision 15 months after the Tribunal’s decision.

In Song, I held that there had been unreasonable delay in making a s 501BA decision more than two years after the Tribunal’s decision. In XPLW, Horan J held that a s 501BA decision made two years and six weeks after the Tribunal’s decision had not been made within a reasonable time.

106 As just noted, a crucial step in my reasoning is that asking whether a s 501BA decision has been made within a reasonable time is not answered simply by asking whether there is a satisfactory explanation for the delay, because the power in s 501BA need not be exercised (see XMBQ at [172]; Hood at [34]-[35]). However, in AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424, the Full Court applied the usual Thornton test of whether there was a satisfactory explanation for delay in assessing whether a decision made under s 501A had been made within a reasonable time: see AQM18 at 67, read with 32. Like s 501BA, the power in s 501A is exercised by the Minister personally after a person has received a favourable (or “non-adverse”) decision, and need not be exercised. However, it appears to have been assumed in AQM18 that the Thornton test applied. Further, AQM18 is factually distinguishable, because the period of delay was approximately 12 months (from January 2017 until January 2018), which included the Minister seeking representations from the affected person: AQM18 at [37]-[40], [54]. AQM18 therefore does not preclude the approach I have set out in assessing whether a s 501BA decision has been made within a reasonable time.

107 Of course, it is necessary to consider the whole of the circumstances, not just the time taken to make a decision in isolation. However, there is nothing in the evidence before the Court to suggest that the time taken here to make a decision under s 501BA is any more reasonable than the time taken in Song. In both cases, the entire period was taken up with processes internal to the Department: unlike cases such as Palmer, the Minister did not seek representations from the affected person, so none of the time taken could be explained on that basis. Some of the explanations given by Ms Stubbs for the delay in this case were not accepted as sufficient explanations in XMBQ: see [94 ]-[95 ] above.

108 There are some differences between the circumstances of this case and those in Song; however, those differences do not suggest any different result. In Song, the very great majority of the time (almost 22 months) was taken in undertaking the initial triaging of the applicant’s case and conducting the initial assessment of his case against the Ministerial thresholds. In XPLW, the initial triaging of the applicant’s case and assessment against Ministerial thresholds took more than 18 months: XPLW at [151]. Here, that initial stage was undertaken more quickly (14 months), but the remaining stages took much longer (more than 11 months). As noted, there are periods of significant inaction: there was no consideration of s 501BA matters by the Minister between June 2022 and April 2023, and it appears to have taken three months for the completed s 501BA brief to have been provided to the Minister in this case: see [98 ] above.

109 Conclusions as to reasonable time: Weighing these matters, I find that the Minister’s decision was not made within a reasonable time in this case.

(a) As noted, the Minister’s decision took more than 25 months in total (from 11 April 2022 until 28 May 2024). The initial assessment of the Applicant’s case against Ministerial thresholds took 14 months, and the remaining steps more than 11 months. This was after the Department was able to prepare an options brief in relation to the Applicant, and obtain a decision from the previous Minister that he wished to consider s 501BA, within three days of the Tribunal’s decision: see [28 ] above. I accept that a change in Minister may require a change in approach, but the question remains whether the time taken was reasonable: XMBQ at [182]-[183].

(b) The Minister contends that this delay was caused by a lack of resources and competing priorities, and that the Department’s allocation of resources could not be said to be unreasonable. I accept that available resources and competing priorities are a relevant factor, and further that the courts cannot and should not impose their priorities on the Executive. At the same time, a delay may be unreasonable in some circumstances, even if a lack of resources is the explanation for that delay. And the Minister properly accepts that the resourcing issues and competing priorities were not specific to the Applicant’s case, but reduced the amount of resources available generally.

(c) Here, there is no duty to exercise the s 501BA power. That power is exceptional in nature, and is usually exercised (and was exercised here) once a person has been through an initial delegate’s decision, and an independent merits review process. The default position is that the Tribunal’s decision will govern a person’s rights, unless the Minister exercises a personal override power. Therefore, the threshold of delay for the purposes of s 501BA is not necessarily couched in terms of whether or not the delay is a consequence of neglect, oversight or perversity.

(d) Assessing the circumstances objectively and as a whole, to spend 14 months making an initial assessment of the Applicant’s case and then to make a decision more than 25 months after the Tribunal’s decision is not to make a decision within a reasonable time. This is not to criticise the Department’s use of its resources, particularly the focus of resources on people in immigration detention. But the exceptional power in s 501BA must be exercised within a timeframe so that, objectively assessed, it is responding to or addressing the Tribunal’s decision. Applying the approach in XMBQ, the period here of more than 25 months is not within a reasonable time.

110 Even so, as mentioned, ground (3) must be rejected, because XMBQ (FC) establishes that s 501BA is not subject to any time limit.

D.    Conclusions

111 The application must therefore be allowed. There is no reason to depart from the usual position on costs.

| I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill. |
Associate:

Dated: 27 March 2026

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