Wihongi-Lim v Minister for Immigration and Citizenship - Visa Cancellation Review

Original Word Document (104.6 KB) Federal Court of Australia

Wihongi-Lim v Minister for Immigration and Citizenship [2026] FCA 317

| File number(s): | QUD 428 of 2024 |
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| Judgment of: | COLLIER J |
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| Date of judgment: | 24 March 2026 |
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| Catchwords: | MIGRATION – further amended originating application for review of decision of Minister for Immigration and Citizenship – where Minister exercised his personal power to set aside decision of then Administrative Appeals Tribunal and cancelled applicant’s visa – s 501BA Migration Act 1958 (Cth) – Minister found applicant did not pass character test and cancelled the visa in national interest – two grounds of review – principles giving rise to jurisdictional error on basis of irrationality – where Minister found childhood exposure to drugs and alcohol to increase risk of future relapse – whether lack of personal consideration by Minister – neither ground of review made out – application dismissed |
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| Legislation: | Migration Act 1958 (Cth) ss 501(3A), (7)(c), 501BA, (2), 501CA |
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| Cases cited: | Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335

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

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128

Masi- Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277

McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258

M inister for Immigration, Citizenship & Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398

Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158

X RZ G 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: | Queensland |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 45 |
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| Date of last submission/s: | 15 August 2025 |
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| Date of hearing: | 22 August 2025 |
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| Counsel for the Applicant: | Mr B. Wilson |
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| Solicitor for the Applicant: | Carina Ford Immigration Lawyers |
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| Counsel for the Respondent: | Mr J. Kay Hoyle with Mr B. McGlade |
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| Solicitor for the Respondent: | Sparke Helmore Lawyers |
ORDERS

| | | QUD 428 of 2024 |
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| BETWEEN: | PERA WIHONGI-LIM

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

Respondent | |

| order made by: | COLLIER J |
| DATE OF ORDER: | 24 MARCH 2026 |
THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1 Before the Court is a further amended originating application for review (application) of a decision of the Minister for Immigration and Citizenship (Minister) made on 24 June 2024 (decision). The application was accepted for filing on 14 May 2025. In the decision the Minister exercised his personal power under s 501BA(2) of the Migration Act 1958 (Cth) to set aside an earlier decision of the Administrative Appeals Tribunal (Tribunal) of 16 October 2023, and cancelled the applicant’s Class TY Subclass 444 Special Category Visa (visa).

2 In his application, the applicant sought the following relief:

1. An order that the decision of the Minister be quashed.

2. An order in the nature of a writ of prohibition, prohibiting the Minister from acting on the decision quashed.

3. The Respondents pay the Applicant’s costs of and incidental to the proceeding.

4. Any other order that the Court deems fit.

3 The applicant relied on two grounds of review, namely:

1. The Minister’s finding that there was a real likelihood that the Applicant would relapse into drug use in part because they had been exposed to alcohol and drugs while growing up lacked a rational basis and was a material error in reasoning.

2. In circumstances where the Department’s submission to the Minister called for the Minister to consider “all materials provided”, the Minister failed to afford to the material before him the level of personal consideration necessary to be satisfied both that the cancellation of the applicant’s visa was in the national interest and that the circumstances warranted the exercise of the Minister’s discretion to cancel the Applicant’s visa.

a. The submissions to the Minister from the Department, including the attachments, consisted of 375 pages of material.

b. The Minister’s decision records that he spent 2 hours considering the submission and attachments on 24 June 2024.

c. No summary of the material was provided to the Minister for his consideration, and paragraph 18 of the Submission to the Minister provides that the decision to cancel the Applicant’s visa was contingent on the Minister “having considered all materials provided”.

d. The decision prepared by the Department was finely balanced, giving significant weight to factors both for and against cancellation of the Applicant’s visa based on unpinpointed references to the attachment material.

e. The Minister’s public statement via media release dated 3 June 2024 that “Over the last week I have cancelled 30 visas of non-citizens with serious criminal histories, in the national interest”, indicates that the Minister was making many of these personal decisions in a short span of time, around the time that the decision in relation to the Applicant was made, which also indicates significant time pressure in respect of making these decisions.

f. The Minister could not have, with this decision and with the materials he had, within the time indicated by the decision record, properly given the decision as drafted and its accompanying materials the proper, genuine and realistic consideration required for the exercise of the personal power under s 501BA(2)

4 For the reasons that follow, neither ground is established. The application must therefore be dismissed.

Background

5 The applicant was born in New Zealand in 1991 and moved to Australia on 7 November 2014.

6 The applicant has a substantial history of offending. This history was set out extensively by the Tribunal in its decision of 18 December 2023, including the following:

1. The Applicant first offended in New Zealand, having been convicted of wilful damage in New Zealand on 12 January 2011, at the age of 20.

2. The Applicant’s criminal history in Australia commences on 26 September 2019, when the Applicant’s car was stopped and searched by police. Located in the Applicant’s jacket pocket at that time were three small clip seal bags containing methylamphetamine (7.41 grams). Also located in the car at that time were a set of electric digital scales; a set of numberplates that had been stolen from a shopping centre carpark the day prior; and a phone used in connection with the sale of drugs. On the same day the Applicant entered into a bail undertaking at the Southport Magistrates Court, which required that he report to the Coomera Police station every Wednesday.

…

1. On 24 December 2019, the Applicant committed the offences of ‘stealing’, ‘possessing dangerous drugs’ (3 counts), ‘contravene direction or requirement’, ‘possess tainted property’, ‘possess utensils or pipes etc for use’, and ‘possession of a knife in a public place or a school’. The Applicant was sentenced in relation to those offences on 8 August 2019. Police had been contacted by loss prevention officers when the Applicant had gone to Target and had proceeded to fill a shopping trolley with toys and other items totalling $775.60, before then attempting to leave the store without making any attempt to pay for the items in his trolley, setting off security alarms in the process. When questioned by police the Applicant provided a false name. He was then arrested and searched, and was found to be in possession of a driver license and Medicare card in the name of another person; a zip bag containing digital scales with a crystal residue; a multitool with numerous knife blades; and methylamphetamine, diazepam and oxycodone.

…

1. On 4 February 2020, the Applicant committed the following offences:

• wilful damage, for which he was sentenced to three months imprisonment;

• enter premises and commit indictable offence by break, and assaults occasioning bodily harm whilst armed/in company, for which he was sentenced to 12 months imprisonment;

• stealing, for which he was sentenced to 18 months imprisonment; and

• enter dwelling with intent by break and enter at night whilst armed in company damages property, for which he was sentenced to three years and six months imprisonment suspended after having served 14 months imprisonment.

1. The Applicant was convicted of those offences in the Southport District Court on 20 July 2021 and sentenced as indicated in the preceding paragraph. The Applicant and two co-offenders had approached the victim’s home in the early hours of the morning disguised with hooded jumpers over their heads. A nail gun was first stolen from the victim’s car before a co-offender then kicked open the front door of the residence. Upon entry, the other co-offender stole various items. One of the occupants of the house woke up and discovered the Applicant halfway up the stairs and pointing the stolen nail gun at him and one of the Applicant’s co-offenders at the top of the stairs, armed with a pole. The co-offender then attacked the occupant with the pole and the Applicant struck at him with the nail gun. The victim was assaulted by both the Applicant and the co-accused, being kicked and punched whilst on the ground. Whilst outside the house either the Applicant or one of the co-accused smashed the windows of the house as well as the windows and panels of the complainant’s car.

…

1. On 19 June 2020, the Applicant committed the offence of stealing. He attended a store and left with two pairs of sunglasses, yet without making any attempt to pay for these. The sunglasses were valued at $670.90. The Applicant was convicted of that offence on 8 August 2022.

…

(footnotes omitted)

7 On 1 September 2022, a Delegate of the Minister (Delegate) mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act on the basis that the applicant did not pass the character test (cancellation decision).

8 On 16 September 2022, the applicant requested revocation of the cancellation decision. On 26 July 2023, the Delegate refused revocation of the cancellation decision, and accordingly the applicant’s visa remained cancelled (decision of the Delegate).

9 On 1 August 2023, the applicant applied for a review of the decision of the Delegate in the Tribunal. The hearing was held on 2 and 3 October 2023.

10 On 16 October 2023, the Tribunal set aside and substituted the decision of the Delegate (Tribunal decision). Written reasons were published on 18 December 2023.

11 On 20 June 2024, a Submission concerning whether to cancel the applicant’s visa pursuant to s 501BA(2) was prepared by the Department of Home Affairs (Department) for the Minister’s consideration and action (Submission). The Submission enclosed:

a Decision Record;

an Index of Relevant Material;

a Proposed Statement of Reasons; and

copies of the Relevant Material.

12 Not including the cover letter, the Submission and the enclosed material totalled 346 pages in length.

13 On 24 June 2024, the Minister exercised his personal power under s 501BA of the Migration Act to set aside the Tribunal decision and cancel the applicant’s visa. The Minister adopted the Statement of Reasons (Reasons or Minister’s Reasons) prepared by the Department in the Submission without any changes. The Decision Record noted that the Minister made his decision after considering the Submission and the enclosed material for a total of exactly two hours.

Decision of the Minister

14 Section 501BA(2) of the Migration Act empowers the Minister to set aside a decision made under s 501CA (in this case, the Tribunal decision) and cancel a person’s visa if:

the Minister is satisfied that the person does not pass the character test; and

the Minister is satisfied that the cancellation is in the national interest.

15 On 24 June 2024, the Minister cancelled the applicant’s visa on the following basis:

Cancellation outcome

(d) I am satisfied that Mr WIHONGI-LIM does not pass the character test because of the operation of s501(6)(a), on the basis of s501(7)(c), and I am satisfied that it is in the national interest to cancel Mr WIHONGI-LIM's visa. I have decided to exercise my discretion under s501BA of the Act. I hereby set aside the decision of the Administrative Appeals Tribunal dated 16 October 2023 and cancel Mr WIHONGI-LIM's Class TY Subclass 444 Special Category (Temporary) visa. My reasons for this decision are set out in the attached Statement of Reasons.

The Character Test

16 The first limb of s 501BA(2) of the Migration Act requires that the Minister must be satisfied that the person does not pass the character test.

17 The Minister noted in his Reasons that a person does not pass the character test if that person has a substantial criminal record. Section 501(7)(c) of the Migration Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

18 The Minister referred to the conviction handed down by the District Court of Queensland on 20 July 2022 for which the applicant was sentenced to three years and six months imprisonment. As a result, the applicant failed to pass the character test.

The National Interest

19 The Minister then considered whether the cancellation of the applicant’s visa was in the national interest. The Minister noted that matters of national interest included, among other things, the protection of the Australian community and expectations of the Australian community, and relevantly found (in summary):

In relation to the seriousness of the applicant’s criminal conduct, the Australian government considers that all offending involving violence is viewed very seriously. The Minister noted in particular the applicant’s 4 February 2020 convictions of wilful damage, enter premises and commit indictable offence by break, assaults occasioning bodily harm whilst armed/in company, stealing and enter dwelling with intent by break and enter at night whilst armed in company damages property. In respect of this offending, the Minister noted:

1. I am very concerned by Mr WIHONGI-LIM's violent offending as described above. Members of the Australian community are entitled to be and feel safe in their homes. I further note that there were significant injuries to the victim. The episode of offending plainly consisted of serious violent offending. I also consider that the sentences Mr WIHONGI-LIM received are a further indication of the seriousness of the offending. Outcomes involving incarceration of the offender are the last resort in the sentencing hierarchy and I consider that the custodial sentences imposed in this case further reflect the very serious nature of the offending. Overall, I find that Mr WIHONGI-LIM's violent offending is very serious.

The Minister considered the other offences in respect of which the applicant had been convicted. The Minister found that the applicant had a considerable criminal record and that the seriousness of his offending had increased over time. The Minister concluded that the applicant’s offending was very serious.

In relation to the risk to the Australian community that may be posed by the applicant, the Minister considered the nature of harm should the applicant reoffend, and any factors contributing to past conduct. He found the following:

(a) Factors contributing to past conduct

1. I have taken into account Mr WIHONGI-LIM's submissions and evidence in the AAT proceedings about the explanation for his offending and why he submits that he is at a very low risk of reoffending. In relation to the former, I note that in summary, he has attributed his offending to his unstable upbringing, poor influence from anti-social peers and partner, his mental health and his drug addiction Attachments Q-S.

(b) Remorse and rehabilitation

1. I have had regard to the Queensland Corrective Services' risk of re-offending assessment dated 25 July 2022 (Attachment T), the report and oral evidence of Dr Gavan Palk, forensic psychologist (Attachments P and S), the supporting letters and oral evidence of Mr WIHONGI-LIM's family and support network and evidence of rehabilitation programs participated in or completed by Mr WIHONGI-LIM (Attachments P and S). The tenor of all of that evidence is that the risk of Mr WIHONGI-LIM reoffending is low or "exceptionally low" on the basis that Mr WIHONGI-LIM has shown remorse, is no longer addicted to methamphetamine (and has been on suboxone treatment), has cut off ties to anti-social peers, has undertaken significant rehabilitation, has a supportive network and stable employment to act as protective factors against reoffending and will not reoffend because he now understands that criminal offending can lead to visa cancellation and potential removal from Australia.

2. I have had particular regard to Mr WIHONGI-LIM's statements and submissions that were filed as part of the AAT proceedings about the significant steps he has taken towards his rehabilitation, including participation in Narcotics Anonymous, completion of numerous rehabilitation programs the certificates of which were filed in the AAT during the proceedings, and the seeking of mental health treatment (Attachments R and S). I am also aware that Mr WIHONGI-LIM filed evidence relating to his participation in, or intent to participate in programs delivered by DRUG ARM, Lives Lived Well and SANE (Attachment S). I have had regard to that evidence.

3. I accept that Mr WIHONGI-LIM is genuinely remorseful for his conduct both in terms of the consequences his offending has had for his victims and himself. I accept that drug use (particularly methamphetamine use) has played a significant part in his offending history. I also accept that he has been proactive in engaging with rehabilitative and medical services with the aim of addressing his criminogenic needs.

4. Notwithstanding the above evidence however, I remain concerned about the risk of Mr WIHONGI-LIM reoffending for the following reasons.

5. I note that the evidence of Dr Palk at the AAT hearing was that his assessment of exceptionally low risk was qualified by Mr WIHONGI-LIM's ability to keep away from drug use (Attachment P). I am aware that at the height of Mr WIHONGI-LIM's addiction to methamphetamine, he was using the drug on a daily basis. Prior to that, in about 2017, Mr WIHONGI-LIM had also taken the drug on a weekly basis for some months (Attachment P). Given Dr Palk opined that Mr WIHONGI-LIM "did not handle life stressors very well", and the significant time in which Mr WIHONGI-LIM had taken, or been addicted to, methamphetamine, I find that there is still a real likelihood of him relapsing. This is particularly so given Mr WIHONGI-LIM's own evidence was that growing up, he was exposed to alcohol and drugs often (Attachment R). In making the finding that there remains an ongoing likelihood of Mr WIHONGI - LIM relapsing, I am mindful that Mr WIHONGI-LIM is on suboxone, an opioid substitute treatment and there is no evidence before me that Mr WIHONGI-LIM is currently taking methamphetamine while in the community. However, his lengthy history with methamphethamine sic is such that I remain of the view that there is a real likelihood of Mr WIHONGI-LIM relapsing into drug use.

6. I have had regard to the significant efforts Mr WIHONGI-LIM has taken to address his drug use and the support network available to him that act as protective factors. In particular, I have considered the numerous certificates attesting to the rehabilitation he has completed, including on drug use and anger management. I accept that he has completed significant rehabilitation and that that does indeed reduce the likelihood of him relapsing. However, in light of his deeply entrenched history of methamphetamine use, I cannot rule out the possibility of relapse. In relation to his support network (including stable employment and support from his family), I note that it was not able to prevent him offending previously. Having regard to Dr Palk's opinion that Mr WIHONGI-LIM did not handle life stressors well, I find that should Mr WIHONGI-LIM face stressors, there is a real (albeit low) likelihood of him relapsing into drug use and reoffending.

Conclusion on risk to community

…

1. Considering the nature and seriousness of Mr WIHONGI-LIM's conduct, the potential harm to the Australian community should he commit further offences, and taking into account the likelihood of Mr WIHONGI-LIM reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.

(emphasis added)

In relation to the expectations of the Australian community, the Minister noted that the Australian community expects non-citizens to obey Australian laws while in Australia. The Minister said:

1. I note that in his statement of facts, issues and contentions filed with the AAT, Mr WIHONGI-LIM submitted that this consideration should be offset by his lengthy residence in Australia (Attachment Q). I do not accept that submission. I note that Mr WIHONGI-LIM first arrived in Australia in 2014. As such, prior to his offending, he had not been in Australia for a particularly lengthy period of time, namely only five or six years. In any event, in my view, this consideration, as it relates to the national interest, is about what the Australian community expects as a norm, rather than how the community might weigh up the specific circumstances of an individual non-citizen. Nevertheless, I have considered Mr WIHONGI-LIM's specific circumstances, to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons. I have concluded this consideration weighs significantly in support of cancellation in this case and accordingly I find that it is in the national interest to cancel Mr WIHONGI-LIM's visa.

Discretionary Considerations

20 The Minister noted that the power to cancel a visa under s 501BA of the Migration Act is discretionary, and considered whether there were additional relevant considerations that might support a decision not to cancel the applicant’s visa. The Minister formed views including:

In relation to the best interests of minor children, the Minister considered that the applicant has two minor children, aged seven and two years old at the time of the decision. In the Tribunal proceedings the applicant’s partner, who was the mother of his two-year-old child, stated that she did not have the financial means to travel to New Zealand frequently, which would result in the child rarely seeing his father. The applicant’s former partner, who was the mother of his seven-year-old child, said that the child would face emotional and financial hardship in the absence of her father. The Minister accepted that the applicant had played a positive role in the lives of his children and may continue to do so if he refrained from further drug use and offending, in respect of which there was an ongoing risk. The Minister formed the view that the best interests of the applicant’s children weighed heavily against exercising the discretion to cancel the visa. The Minister also had regard to the best interests of the applicant’s nieces and nephews and found the following:

1. In addition to his children, I understand that Mr WIHONGI-LIM also has three nieces and three nephews who are minors (Attachments Q and S). They are:

• Zion Connor, born 22 December 2015, aged eight years;

• Zarianna Connor, born 2 December 2018, aged five years;

• Zateo Connor, born 25 March 2020, aged four years;

• Bijou Jauhiainen, born 17 September 2019, aged four years;

• Mikhael Jauhiainen, born 4 April 2021, aged three years;

• Anna Jauhiainen, born 16 March 2020, aged four years.

1. In the statement of facts, issues and contentions filed in the AAT by Mr WIHONGI-LIM, he said he maintained contact with the nieces and nephews and was a positive uncle role in their lives. He also said that he saw them once per week and even babysat them Attachment J.

2. I find that it is in the best interests of Mr WIHONGI-LIM's minor nieces and nephews for him to remain in Australia. However, I note that the relationship is not parental given that a parental role is fulfilled by the children's parents. I nevertheless accept that those children would be upset and disappointed if Mr WIHONGI-LIM were not permitted to remain in Australia and that the exercise of the discretion to cancel the visa would deprive his nieces and nephews of the opportunity to have an ongoing relationship with him in the future. Given the lack of detailed evidence from the children's parents however, and the fact that the relationship is not parental, I find that their best interests weigh only minimally against the discretion to cancel the visa being exercised.

In relation to the applicant’s ties to Australia, the Minister noted:

• The length of time the applicant had resided in Australia, namely 10 years.

• That the applicant had the following immediate family in Australia:

• Ms Esther Davidsson, partner;

• Ms Rebekah Morurari, former partner;

• Ms Ruiha Wihongi-Lim, mother.

• Ms Davidsson’s evidence before the Tribunal that she suffered from bipolar disorder and that the applicant’s absence may trigger a deterioration in her health. The Minister further noted Ms Davidsson’s evidence that she would face financial hardship in the applicant’s absence.

• The evidence of Ms Morurari and Ms Wihongi-Lim before the Tribunal that they would face financial and emotional hardship should the applicant be removed from Australia.

• The hardship that would be faced by the applicant’s children should he be removed from Australia.

• The statement of Mr Ian Turketo, the applicant’s former employer, which did not describe any effect the applicant’s absence would have on him.

• That the applicant had worked in the floor laying industry for most of his time in Australia. The Minister considered that the applicant’s employment was a positive contribution to the community.

• In conclusion, the applicant’s ties to Australia weighed very strongly against visa cancellation.

In respect of any impediments the applicant may face if removed to New Zealand, the Minister noted:

• The applicant was diagnosed with post-traumatic stress disorder in the past and had been prescribed suboxone to manage his methamphetamine cravings, but there was no evidence to indicate that such medication, or any mental health treatments, would not be available to the applicant in New Zealand.

• The applicant previously suffered from pain arising from a hernia, however there was no evidence before the Tribunal to suggest that that pain persists.

• The applicant spent the first 24 years of his life in New Zealand and would therefore be unlikely to face any language or cultural barriers should he return to New Zealand.

• The applicant would have access to health and welfare services in New Zealand of a similar standard and accessibility to that of Australia.

• The applicant’s evidence before the Tribunal that the applicant would have limited social support in New Zealand given he arrived in Australia some 10 years ago. The Minister gave this consideration some weight.

• The finding by the Tribunal that the applicant would face considerable hardship upon his return to New Zealand. The Minister disagreed with this finding and opined that the applicant would face, at most, moderate impediments in New Zealand.

Submissions of the Parties

Submissions of the Applicant

Ground 1 – Material error in reasoning

21 In respect of ground 1, the applicant submitted, in summary:

The Reasons adopted by the Minister from the Department’s Submission concluded that although the likelihood of the applicant re-offending was low, it would increase if the applicant were to relapse into drug use, and that there was a “real (albeit low) likelihood of such relapse”. This assessment was critical to the Minister’s finding that visa cancellation was in the national interest.

The Minister’s reasoning for concluding that there was a real likelihood of relapse relied “particularly” on the fact that the applicant had been exposed to alcohol and drugs often while growing up. This conclusion lacked any rational or evidentiary foundation and therefore amounted to jurisdictional error.

In his statement before the Tribunal, the applicant referred to being exposed to alcohol and drugs often when he was young. However, he did not describe that exposure as being a risk factor for relapse. The Risk Assessment prepared by forensic psychologist Dr Palk also did not identify exposure to alcohol and drugs at a young age as being a particular reason why a relapse into drug use was now more likely. A connection between that exposure and risk of relapse would ordinarily require reliance on expert evidence and there was no material before the Minister which stated such a conclusion.

The Minister stated in his Reasons that the finding that the applicant had been exposed to alcohol and drugs at a young age was what he “particularly” based his conclusion on. It therefore followed that the finding was a critical step in the ultimate conclusion.

The Minister therefore committed an error in reasoning amounting to jurisdictional error in resolving the question of whether cancelling the applicant’s visa was in the national interest. Absent the erroneous finding, there was a realistic possibility that a different result could have been reached.

Ground 2 – Insufficient personal consideration by the Minister

22 In respect of ground 2, the applicant submitted, in summary:

The Minister noted three times in his Reasons that a decision should only be made after having considered the materials attached to the Submission to the Minister. However the Reasons did not summarise the material, meaning the Minister would had to have gone back and read the material himself. The decision repeatedly refers to Attachments P–T, being:

• the decision of the Tribunal (Attachment P);

• the applicant’s Statement of Facts, Issues and Contentions in the Tribunal (Attachment Q);

• a statement of the applicant (Attachment R);

• the applicant’s evidence bundle before the Tribunal (Attachment S); and,

• a Queensland Corrective Services Risk of Re-offending Assessment (Attachment T).

None of the references in the Minister’s Reasons were pinpointed, meaning the Minister would had to have searched through the whole of the Submission and the attached materials to review them. The Minister spent two hours in total considering the relevant material and making the decision.

The materials attached to the Submission comprised 227 pages, notwithstanding that some portion of them consisted of photographs and certificates evidencing employment or rehabilitation programs. Most of those materials consisted of statements, reports, the applicant’s statement of facts, issues and contentions, and the Tribunal decision.

The Minster’s reasons referred to the volume of evidence relating to the applicant’s risk of re-offending, but did not accurately summarise that material. By recommending to the Minister to consider the material before reaching a decision, the Department also appears to accept that they did not consider the Reasons to represent a summary of the materials.

Without a summary of the attachments before him, it was not possible for the Minister to have properly considered the material in two hours.

Submissions of the Respondent

Ground 1 – Material error in reasoning

23 In respect of the applicant’s first ground of review, the Minister submitted, in summary:

The Minister’s finding that there was a real (albeit low) likelihood of the applicant relapsing into drug use was not irrational, and, even if the finding was irrational, the Minister’s decision would not be affected by jurisdictional error.

The “no evidence” principles should be applied, namely by asking whether there was a “skerrick of evidence” for the Minister’s finding: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [17] per Keane, Gordon, Edelman, Steward and Gleeson JJ. If any such evidence existed, there was no scope to conclude that the challenged finding was irrational.

The Minister was permitted to make findings by reference to common sense, a reasonable appreciation of human experience, and personal or specialised knowledge of the Department, including both factual and scientific matters. The Minister was not required to identify any recourse to any such sources. This has been found to be the case in a number of decisions including Viane, Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568 (at [37]–[61]) and X RZ G v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349.

It is widely accepted that exposure to alcohol and drugs during a person’s childhood increases the risk of that person engaging in such conduct later in life. In fact, the applicant himself raised his early exposure to alcohol and drugs in his evidence before the Tribunal. This could be seen to suggest that the applicant accepted the association between exposure to alcohol and drug use as a child, and the increased risk of such use in adulthood. Further, Dr Palk specifically referenced the applicant’s exposure to alcohol and drugs at a young age as being a relevant background fact in Dr Palk’s risk assessment.

The Minister has inevitably built up a store of knowledge over the years in respect of people in situations similar to the applicant. It was open to the Minister to make the challenged finding on the basis of common sense, a reasonable appreciation of human experience, or personal or specialised knowledge of the Department. In any event, the Minister did have at least a “skerrick of evidence” by which he could have made the challenged finding.

In any event, even if the challenged finding was found to be irrational, jurisdictional error would not arise. Irrationality must affect the ultimate decision. The applicant did not contend that the Minister’s decision was not open on the materials as a whole. Further, the challenged finding was not critical. The Minister emphasised elsewhere that the greatest concern was the applicant’s lengthy and entrenched methamphetamine use, and the conclusion as to relapse risk would have been reached regardless of the challenged finding. Relapse risk itself was only one factor in the national interest assessment.

Ground 2 – Insufficient personal consideration by the Minister

24 In respect of the applicant’s second ground of review, the Minister submitted, in summary:

The applicant had failed to discharge the onus of establishing that the Minister did not consider the merits of the case.

While the draft Statement of Reasons did not summarise each item of material attached to it, it did summarise a significant body of that material and extract and identify important aspects of other material. The draft Statement of Reasons was able to substantially expedite the Minister’s task of considering the material before him.

The Minister was not required to read every page of the material and was entitled to rely upon departmental submissions and draft statements of reasons, provided the level of consideration was within the bounds of rationality and reasonableness. The mere adoption of a draft statement of reasons did not give rise to legal error.

The Minister had before him a six-page submission and a 12-page draft Statement of Reasons which summarised or extracted the important aspects of the material and cross-referenced attachments. The evidentiary material was not voluminous, technical or complex, and a significant portion was accepted to be of limited relevance. The Minister also had the benefit of the Tribunal’s reasons and was familiar with decision-making and policy considerations under s 501BA of the Migration Act.

The recorded period of approximately two hours of consideration by the Minister was sufficient in the circumstances. Authorities such as Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 and Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197 were not comparable, as those cases involved far shorter timeframes and different circumstances. The direction in the departmental submission to consider the “content of the attachments” did not require the Minister personally to read every page or prevent reliance on summaries.

Consideration

Ground 1

25 The applicant’s first ground of review claimed irrationality on the part of the Minister in concluding that the applicant’s exposure to alcohol and drugs at a young age increased the risk of future drug relapse. Setting aside a decision on such basis requires the attainment of a high threshold. As the Full Court explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21:

[33]    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made....

[34]    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: .... It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. ... [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35]    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: ... , such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

(emphasis added)

26 These principles have been applied in such cases as Masi- Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [51]-[52], EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128 at [34] and XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [64].

27 In this case, the applicant contended that there was no evidence on which the Minister could have relied to form the conclusion that the applicant would be at a higher risk of relapse (and therefore re-offending) by reason of his exposure to alcohol and drugs at a young age. I accept the Minister’s submission that this contention is referable to the “no evidence” principle. The High Court explained that principle in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [17]-[19]:

If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known. By "no evidence" this has traditionally meant "not a skerrick of evidence".

There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is "another reason" for revocation. Indeed, there are simply no limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge. In the circumstances of the present case, where no evidence or other material has been identified in support of the Minister's findings about the speaking of English and the availability of services in American Samoa and Samoa, it can be assumed that the findings proceeded from the Minister's personal or specialised knowledge or were matters commonly known.

In exercising the power conferred by s 501CA(4) of the Act, the Minister is free to adopt the accumulated knowledge of the Minister's Department ("the Department"). Indeed, it is now well established that the Minister may adopt as the Minister's own written reasons a draft prepared by a departmental officer, provided that such reasons actually reflect the reasons why the Minister had reached her or his decision.

(footnotes omitted, emphasis added)

28 It follows that the existence of even a “skerrick of evidence” negates a conclusion of irrationality: see Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158 at [29].

29 At the hearing, Mr Wilson for the applicant submitted that the reference in Dr Palk’s report to the applicant’s exposure to alcohol and drugs during childhood was insufficient to demonstrate any acceptance or recognition of the association drawn by the Minister in his Reasons. Rather, the applicant contended that the report merely recounted aspects of his personal history to provide contextual background to his life and the circumstances which ultimately led to his offending, and did not identify that exposure as a factor relevant to the risk of future offending. In support of this proposition, the applicant relied on the decision in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [82]:

The absence of anything beyond a recitation of prior convictions also precluded any qualitative assessment by the Assistant Minister of the strength or seriousness of any risk that Mr Splendido would engage in further offending. To find the risk posed by Mr Splendido to the Australian community was an “unacceptable” risk, the Assistant Minister needed to have some information or material which gave him some basis for making such a qualitative assessment, and he had none. He had bare historical facts. What occurred was speculation and guesswork about what those prior convictions indicated about Mr Splendido’s future conduct.

30 The respondent submitted that the present case should be distinguished from Splendido, in which the only evidence before the Minister was a criminal conviction.

31 It is apparent that central to the Minister’s assessment of the applicant’s likelihood of re-offending were:

the applicant’s extensive and entrenched history of methamphetamine use, extending over approximately eight years, including periods of addiction and daily use, and

the close connection between that drug use and the offending that led to visa cancellation.

32 The Minister also took into account evidence that the applicant did not handle life stressors well, and had previously resorted to drug use as a coping mechanism.

33 In my view, those matters provided a substantial basis for the conclusion of the Minister that there was a real (albeit low) risk of relapse by the applicant.

34 Further, I do not accept the submission that the Minister was confined to expert evidence in forming evaluative judgments of risk. There are no limits on the sources of information upon which the Minister may rely. It was open to the Minister to draw upon common sense, a reasonable appreciation of human experience, and accumulated or specialised knowledge acquired in the administration of the Department: see Viane at [17]-[19]; Djokovic at [38]-[39]. Nor was the Minister required to identify the source of such knowledge in his Reasons: see Viane at [18].

35 In any event, the material before the Minister included the applicant’s own reliance on early exposure to alcohol and drugs as explanatory background to later substance abuse. At the very least, there was a “skerrick” of evidence capable of rationally affecting the assessment of the likelihood of relapse.

36 For these reasons, I am not satisfied that the Minister’s decision was affected by jurisdictional error referable to alleged irrationality. The Minister considered multiple factors in his deliberations, and I am satisfied that it was open to the Minister to conclude that there was a real (albeit low) risk of relapse on the part of the applicant. I further note that this was only one aspect of the broader national interest and discretionary considerations taken into account by the Minister.

Ground 2

37 In respect of this ground, I note that the Minister had before him a six-page Submission by the Department, a 12-page Statement of Reasons and a total of 352 pages of material, including evidentiary material. The Minister made his decision in two hours.

38 The fact that the Minister spent two hours considering the material does not support an inference that the merits of the case were not considered or were considered inadequately. This is not a case of the kind considered in Carrascalao, Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335, or Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197, where the timeframes were significantly shorter and, more importantly, the Court found that there was a lack of engagement with crucial material.

39 In the present case, the Minister had before him a six-page Submission and a 12‑page draft Statement of Reasons. While the Reasons did not provide an exhaustive summary of every attachment, it clearly identified the matters central to the exercise of power under s 501BA of the Migration Act. The Reasons set out the key elements of the evidence relevant to risk, re‑offending, rehabilitation, and the national interest, and made references to the underlying material in a manner that allowed the Minister to readily locate and examine particular documents if he considered it necessary to do so. In any event, the Minister is not required to read every page of every document before him. As explained by the High Court in Minister for Immigration, Citizenship & Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594:

1. For the foregoing reasons, it is not a condition of the valid exercise of the power conferred by s 501CA(4) for the Minister, when personally exercising that power, personally to read and examine the submissions, representations and other material received in every case. The Minister may rely instead upon departmental briefs and submissions which accurately summarise and order that material.

40 I further note the following observations of Perry J in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536:

1. Moreover, it is well established that the Minister is entitled to obtain assistance from departmental officers including summaries prepared by them, subject to the important qualifications set out by the Full Court in Carrascalao at [61], including that:

... the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact). Attempts to summarise material of this kind may be fraught, because the manner of the summary may cause some of the substantive force which the document may otherwise have had to be lost ...

1. In line with these principles, it was not in issue that the Minister was not required to read personally the entirety of the material before him; nor that it would not be sufficient for the Minister merely to read the draft statement of reasons (RS (31 Aug 2021) at [71]). In this regard, the Minister took issue with the applicant’s submission that there was no departmental summary of the material to assist the Minister. To the contrary, counsel for the Minister submitted that the Minister had a summary of material being that contained in the draft reasons. In this regard, it would be unfortunate if the practice of preparing a ministerial submission distilling the material separately from draft reasons were regularly departed from. This is because there is an inherent risk that reasons will be drafted so as to support the proposed decision, rather than setting out the various issues and summarising the material in a more neutral manner to assist the Minister to approach the issues with an open mind. Nonetheless, as Mr Herzfeld submitted, the draft reasons in this case were capable of providing the Minister with a relatively comprehensive summary of the material and were cross-referenced to the attachments enabling the Minister readily to go to the source documents themselves and to form an independent state of mind.

(emphasis added)

41 The Minister also had the benefit of the Tribunal’s reasons, which themselves summarised the evidence and articulated the Tribunal’s assessment of that material.

42 The evidentiary material, viewed as a whole, was not technical, specialised or complex. I accept the submission by Counsel for the Minister that, as a general proposition, the Minister is very familiar with circumstances such as that in which the applicant finds himself, due to the nature of the Minister’s work. It is therefore reasonable to infer that the Minister approached the decision with a sound understanding of the applicant’s circumstances, as well as familiarity with the statutory framework and policy considerations attending the exercise of the power under s 501BA. Justice Colvin explained that the familiarity of the decision-maker with the nature of the decision should be taken into account in McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258:

1. In my view, to read the materials in a manner that would be needed in order to consider the representations within them (taking account of the seriousness of the consequences of the decision for the person concerned) and sift what is important and evaluate matters that should be given weight as well as the relative weight to be given to those matters in order to form the required state of satisfaction would be a task that could not be undertaken in less than an hour. Whether it would take longer would depend upon how familiar the person was with the nature of the task and the extent to which the person had already formed views, as a matter of policy, as to the kinds of matters that might generally be sufficient to satisfy the person that they amount to 'another reason' for the revocation of the visa cancellation.

2. I note that the Minister has some familiarity with the exercise of the power and similar powers under the Migration Act. The nature of the assessment to be undertaken though of obvious importance to the person concerned is not particularly complex in a case like the present. At the time of answering interrogatories in this matter the Minister had made a total of 442 decisions under Part 9 of the Migration Act and in the period from 22 December 2020 to 14 April 2021 had made 15 such decisions. There is no suggestion that the Minister made any other such decision at or about the time of the decision concerning Mr McQueen.

(emphasis added)

43 It is well established that, in the exercise of personal ministerial powers, the Minister is entitled to rely upon departmental submissions, briefings and draft statements of reasons which summarise, organise and synthesise the material before him. Provided that the Minister’s level of engagement is reasonable, no legal error arises merely because there is a possible inference that the Minister did not personally read all of the materials in full. That principle was affirmed by the High Court in McQueen at [33] and Carrascalao at [61]. In particular, the Full Court explained in Carrascalao:

1. In addition to the features of the statutory scheme just identified, it may be accepted that, despite the personal nature of the power, the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including have them prepare summaries of information for review by him. There are, however, at least three qualifications to that proposition:

• (a) any such summary which is materially deficient may give rise to an inference that the decision-making process was not properly conducted by the Minister (see, for example, Williams at [21]-[30]; Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 at [32]- [33] per Tamberlin, Mansfield and Emmett JJ; Roberts v Minister for Immigration and Multicultural Affairs [2004] FCA 739 at [44] per French J; and Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 (Gbojueh) at [63] per Bromberg J);

• (b) the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact). Attempts to summarise material of this kind may be fraught, because the manner of the summary may cause some of the substantive force which the document may otherwise have had to be lost; and

• (c) the Minister’s entitlement to have regard to a summary or submission prepared by his Department must take into account any statement or indication in such a document which advises the Minister of the need for him or her personally to consider relevant information in a document which is summarised, as is the case here in respect of the Department’s submissions concerning both Mr Taulahi and Mr Carrascalao.

44 In these circumstances, I am not persuaded that the Minister failed to consider the merits of the case. Ground 2 is therefore rejected.

Conclusion

45 The application should be dismissed with costs.

| I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:

Dated: 24 March 2026

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