Main v Minister for Immigration and Citizenship - Migration Case

Original Word Document (136.8 KB) Federal Court of Australia

Main v Minister for Immigration and Citizenship [2026] FCA 325

| File number: | NSD 763 of 2025 |
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| Judgment of: | MOORE J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | MIGRATION – review of a decision of the Assistant Minister for Citizenship and Multicultural Affairs decided pursuant to s 501A(3)(b) of the Migration Act 1958 (Cth) – where Minister determined that he did not need to consider risk to the Australian community, even if risk might be non-existent – whether risk of harm to the Australian community is a mandatory relevant consideration – whether Minister’s decision was legally unreasonable – alleged factual errors in the Minister’s decision in relation to the characterisation of applicant’s prior offending – whether characterisation of the offence was a mandatory relevant consideration – whether Minister failed to reach the requisite level of satisfaction that cancellation was in the national interest so as to enliven the discretion in s 501A(3) – Minister’s decision should be set aside |
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| Legislation: | Constitution of the Commonwealt h Ch III

Migration Act 1958 (Cth) ss 501, 501A |
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| Cases cited: | Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; [2016] FCAFC 105

Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88

BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82; [2017] FCAFC 78

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

Djalic v Minister for Immigration and Multicultural Affairs (2004) 139 FCR 292; [2004] FCAFC 151

Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417

Le v Minister for Immigration and Border Protection [2015] FCA 1018

Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346

Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220

Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446

Main and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 45

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256

Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367

Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350

MZAGK v Minister for Immigration and Border Protection (2014) 226 FCR 311; [2014] FCA 1190

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

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

Re Patterson; ex parte Taylor (2001) 207 CLR 391

Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132

Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364

SLYN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

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

The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

Vargas v Minister for Home Affairs (2021) 286 FCR 387

WCJS v Minister for Home Affairs [2021] FCA 1093

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539; [2025] FCAFC 115 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 136 |
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| Date of hearing: | 12 November 2025 |
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| Counsel for the Applicant: | Ms R Graycar and Ms H Robinson |
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| Solicitor for the Applicant: | Kinslor Prince Lawyers |
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| Counsel for the Respondent: | Mr J Kay Hoyle SC and Ms K Hooper |
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| Solicitor for the Respondent: | Australian Government Solicitor |

ORDERS

| | | NSD 763 of 2025 |
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| BETWEEN: | ROBERT MICHAEL MAIN

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

Respondent | |

| order made by: | MOORE J |
| DATE OF ORDER: | 25 March 2026 |
THE COURT ORDERS THAT:

1. A writ of certiorari issue, directed to the respondent, quashing the decision made on 25 March 2025 to set aside a decision of the Administrative Review Tribunal made on 29 January 2025 and to cancel the applicant's visa purportedly under s 501A(3)(b) of the Migration Act 1958 (Cth).

2. The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

MOORE J:

Introduction

1 The applicant, Mr Robert Main, is over 70 years old. He was born in the United States of America (USA) and is a citizen of the USA, but has lived in Australia since he was a child and has never left. He has health issues, including schizophrenia, and is in cognitive decline.

2 Mr Main committed very serious offences of murder more than 40 years ago and served long custodial sentences. He was released on parole almost a decade ago and has reintegrated into the community and not committed any further offences.

3 On 25 March 2025, the Assistant Minister for Citizenship and Multicultural Affairs decided pursuant to s 501A(3)(b) of the Migration Act 1958 (Cth) (the Migration Act) to set aside a decision made by the Administrative Review Tribunal (ART) not to cancel Mr Main’s visa. That decision is the subject of the present application. I will refer to the Assistant Minister as the Minister for simplicity, such that “the Minister” refers, depending on the context, to the Assistant Minister or to the respondent.

4 The present application raises an issue of some significance. There has been consideration in relevant decisions extending over some years as to whether, and in what way, the Minister, in making relevant decisions under ss 501 or 501A of the Migration Act (or earlier analogues), must have regard to the risk to the Australian community posed by the visa holder remaining in Australia, including most critically the risk of reoffending.

5 The present case presents an extreme test of those principles, in that in his decision under review, the Minister observed that there was a real question as to whether there was any risk of Mr Main reoffending should he remain in Australia, and considered matters that made such reoffending very unlikely. However, he concluded that he did not need to determine whether there was any such risk because the seriousness of Mr Main’s past offences and “community expectations” were determinative considerations such that, even if Mr Main presented no risk to the Australian community, he should have his visa cancelled.

6 Mr Main also raises other grounds.

Background

7 Mr Main was born in the USA on 22 April 1955. He arrived in Australia with his mother, stepfather and brother on 14 September 1967 when he was 12 years of age and has not left Australia since his arrival. As noted earlier, he is now 70 years of age and he has been diagnosed with schizophrenia, substance use disorder, and mild depression, for which he is medicated, and is in cognitive decline.

8 Between 1975 and 1982 (i.e. when he was aged between 20 and 27), Mr Main was convicted of various offences, including drug-related offences, armed robbery and weapon-related offences. In June 1983, whilst on parole for another offence, Mr Main murdered a man during an armed robbery at a drug dealer’s house. In November 1983, while remanded in custody at Long Bay Prison, he was also involved in the death of a fellow inmate, which relevant judgments classified as a premeditated murder.

9 Mr Main was convicted of three offences: two convictions for murders and one conviction for assault with intent to rob/use corporal violence (in respect of the armed robbery in June 1983). He was sentenced to three life sentences as a result of these convictions. Relevantly, s 19 of the Crimes Act 1900 (NSW) at the time prescribed a mandatory life sentence for murder.

10 Following the introduction of the Sentencing Act 1989 (NSW), Mr Main was eligible, as a person sentenced to life imprisonment in New South Wales, for a sentence redetermination and he applied for such a determination on more than one occasion. A helpful summary of Mr Main’s resentencing applications is set out in Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [11] – 12, as follows:

11     The introduction of the Sentencing Act 1989 (NSW) enabled a person who had been sentenced to life imprisonment to apply for a redetermination of sentence: see [R v Main [2009] NSWCCA 14 (CCA)] at [11]. The applicant made two unsuccessful applications for redetermination in 1995 and 1999: see CCA at [12]-[13]. A third application for redetermination made in 2008 was granted: R v Main [2008] NSWSC 692 (R v Main). The sentences for the applicant’s first two offences were re-determined with a non-parole period ending on 4 July 2008. More particularly, for the assault with intent to rob, the sentence was 25 years and 2 months to commence on 29 June 1983, with the non-parole period ending 4 July 2008: see R v Main at [27]. For the first murder conviction, the sentence was 26 years imprisonment to commence on 29 June 1983, with the non-parole period ending 4 July 2008: see R v Main at [29]. The sentence for the murder at Long Bay Gaol was not re-determined (and therefore remains a life sentence), but the Court set a non-parole period of 25 years that ended on 27 May 2012: see R v Main at [35].

12     The Crown appealed the non-parole period imposed in relation to the second murder. That appeal was rejected, with the Court of Appeal observing, inter alia, at CCA [43]:

[43]     It is important to stress that the high level of criminality exhibited by the respondent in his multiple offences remains reflected in the maintenance of the head term of imprisonment for life. The specification of a non-parole period merely sets a date of eligibility and does not imply a probability of release. The setting of a non-parole period establishes only a date upon which release is possible. Whether actual release in fact occurs is dependent upon a decision of the parole authority which is obliged pursuant to s 135 of the Crimes (Administration of Sentences) Act 1999 not to make an order for parole unless it is appropriate, having regard, inter alia, to the need to protect the safety of the community and the likelihood of the respondent being able to adapt to normal lawful community life. It is also obvious, but if the respondent is granted parole and breaches any of its conditions he is liable to be returned to custody at any time during his lifetime, having regard to the over-arching and remaining indeterminate head sentence.

11 Mr Main’s non-parole period ended on 27 May 2012 and on 17 June 2016 he was released into the community on lifetime parole. Following his release, until 4 May 2022, he resided uneventfully in the community, remained compliant with his parole conditions, cared for his terminally ill brother and re-established familial and personal relationships.

12 On 25 February 2020, a decision was made to cancel Mr Main’s Class BF Transitional (Permanent) Visa (February 2020 Decision). Mr Main was notified of that decision on 4 May 2022 and was taken into immigration detention. Mr Main sought judicial review of the February 2020 Decision. On 11 May 2023, the February 2020 Decision was quashed, and Mr Main was released back into the community. Again, his further time in the community was uneventful.

13 On 3 September 2024, another decision was made to cancel Mr Main’s visa (September 2024 Decision). He was taken into immigration detention for a second time on 6 November 2024.

14 Thus although Mr Main has been released on parole for nearly a decade, some of that time has been spent in immigration detention. Nevertheless, Mr Main has spent a substantial time in the community and there has been no recurrence of any misconduct in this overall period.

15 On 14 November 2024, Mr Main applied to the ART for review of the September 2024 Decision. The question before the ART was whether it should exercise the discretion available in s 501(2) of the Migration Act and decide not to cancel Mr Main’s visa. On 29 January 2025, the ART set aside the September 2024 Decision and substituted it with a decision not to cancel Mr Main’s visa: Main and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 45 at 12.

16 On 25 March 2025, the Minister exercised his discretion to set aside the ART Decision pursuant to s 501A(3)(b) of the Migration Act and issued reasons for his decision (Reasons). That decision is the subject of this application.

Legislative framework

17 Section 501A(3) of the Migration Act relevantly provides:

(1) This section applies if:

(a)    …

(b)    the ART;

makes a decision (the original decision):

(c)    …

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

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

…

Action by Minister – natural justice does not apply

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

(a)    …

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

if:

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

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

18 The “character test”, as referred to in the extracted section above, is set out in s 501 of the Migration Act which relevantly provides:

…

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)     For the purposes of the character test, a person has a substantial criminal record if:

…

(b)     the person has been sentenced to imprisonment for life; or

(c)     the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)     the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

…

19 There was no dispute that Mr Main does not pass the character test by reason of sub-ss 501(6) and (7) of the Migration Act. The relevant issue therefore concerns the Minister’s determination that he was satisfied that the cancellation of the visa is in the national interest.

The Minister’s decision

20 After discussing some preliminary matters, including the power to cancel a visa under s 501A, the Reasons are structured under three bold headings: “Character Test”, “National Interest”, and “Discretion”.

21 The Minister first determined that he had a reasonable suspicion that Mr Main did not pass the character test. There is no challenge to that part of the Reasons.

22 The Minister then turned to consider whether cancellation of Mr Main’s visa was in the national interest. He first considered this under the topic of “Seriousness and gravity of criminal offending”. His first observation was as follows, at paragraph [14] of the Reasons:

14.    In my view, the seriousness and gravity of Mr MAIN’s offending bears upon the question of whether cancellation is in the national interest. The national interest dictates that people who engage in sufficiently serious crimes should not have the benefits of an Australian visa.

23 The Minister then outlined Mr Main’s criminal history. I will consider that section in more detail below in connection with Ground 1.

24 The section on “Seriousness and gravity of criminal offending” concluded with the following paragraph, being paragraph [21]:

21.    Overall, the gravity of Mr MAIN’s offending is difficult to overstate. Two of Mr MAIN’s crimes are amongst the most severe imaginable. He has murdered two men. One of the murders was carried out under a contract to kill arrangement. The national interest dictates that people who engage in multiple murders including premeditated murder should not have the benefit of an Australian visa. For this reason, I consider that cancellation is in the national interest.

25 The Minister then turned to consider the “Expectations of the Australian community”. This matter was considered succinctly, in the following terms:

22.    The expectations of the Australian community is a matter that bears upon the national interest. It is in the national interest that Australia’s migration system meets community expectations. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

23.    Plainly, the community would expect that a non-citizen in the position of Mr MAIN who has committed two murders, including premeditated murder, should have their visa cancelled. For this reason, I consider that cancellation is in the national interest.

26 The Minister then concluded that it was in the national interest for Mr Main’s visa to be cancelled, on the basis of the seriousness and gravity of his criminal offending and community expectations, stating that each of those bases independently, as well as cumulatively, made cancellation in the national interest.

27 That concluded the discussion under the heading “National Interest”. The Minister then commenced a discussion under the heading “Discretion”. The Minister commenced by observing that he had formed a reasonable suspicion that Mr Main did not pass the character test for the purposes of s 501A(3)(c), and that for the purposes of s 501A(3)(d), cancellation was in the national interest. He observed:

Thus, my discretionary power to cancel Mr MAIN’s visa under s 501A(3) is enlivened. In deciding whether to exercise the power, I have considered the factors identified below.

28 The Minister then dealt with four factors, under the headings: “Seriousness and community expectations”, “Strength, nature and duration of Mr MAIN’s ties to Australia”, “Impediments if removed to United States”, and “Risk to the Australian community”.

29 Under the first heading, the Minister noted that he had already addressed “the seriousness and gravity of Mr MAIN’s crimes and community expectations”. He then observed as follows (emphasis added):

27.    In my view, these factors – both individually and cumulatively – weigh determinatively in favour of the exercise of power under s 501A(3). In other words, these factors themselves justify the exercise of the power and outweigh all other factors tending against that result.

30 The determinative weight given to these matters is evident in the way in which the Minister dealt with the other topics in exercising his discretion. In relation to the “Strength, nature and duration of Mr MAIN’s ties to Australia”, the Minister identified the support Mr Main provided to his partner, who has health conditions, and the negative impact the cancellation of his visa would have on her. The Minister also observed that Mr Main was a positive influence on his grandson, who would be negatively impacted by his absence. The Minister concluded:

32.    In my view, Mr MAIN's ties to Australia weighs strongly against cancellation in this case. However, in my view, this consideration does not outweigh the factors identified above to which I have apportioned determinative weight.

31 Likewise, in relation to the “Impediments if removed to United States”, the Minister said:

38.    In sum, I accept that, if removed to the United States, Mr MAIN will likely struggle to maintain basic living standards. I also accept that his removal may have an adverse impact on his health. I appreciate that Mr MAIN will likely face significant hardship upon his removal to the United States. Overall, I consider that this factor weighs very heavily in favour of the non-exercise of my power under s 501A(3). However, in my view, this consideration does not outweigh the factors identified above against which I have apportioned determinative weight.

32 It is appropriate to set out a significant part of the observations appearing under the heading “Risk to the Australian Community”, which includes the following relevant passages (emphasis in original):

40.    In deciding whether to exercise my discretion, I have considered the risk Mr MAIN poses to the Australian community. However, for reasons set out below, it is unnecessary for me to reach a final view as to the nature and extent of that risk.

41.    As set out above, I consider that Mr MAIN’s criminal behaviour falls within the highest category of seriousness. It is dangerous offending that shows disregard for human life. If, in the future, Mr MAIN were to commit dangerous offending of the kind he has previously engaged in, the harm caused will likely be severe. It may, as has occurred twice in the past, cause death to members of the Australian community. In my view, any risk of this behaviour being repeated is intolerable.

42.    However, in this case, there is a real question as to whether there is any risk of Mr MAIN reoffending should he remain in Australia. Mr MAIN has a history of drug addiction, particularly to opioids. That history is summarised in a report dated 13 March 2024 by Mr Tim Watson-Munro… Mr Watson-Munro describes a clear relationship between Mr MAIN’s offending, his drug addiction and his Substance Use Disorder. I note Mr MAIN suffers from a number of other psychiatric conditions, including schizophrenia and depression.

43.    There is evidence that Mr MAIN’s likelihood of reoffending is (at least) at the very low end. As the ART noted, Mr MAIN’s psychiatric conditions are being appropriately managed and treated. He has taken, and continues to take, medication for his schizophrenia and his opiate addiction. It appears Mr MAIN has not used illicit drugs for a significant period of time. According to Mr Watson-Muro, Mr Main’s opioid dependency is in ‘full remission’… Mr MAIN is said to lack the motivation and resources to involve himself in crime again.

44.    I appreciate the murders occurred in the 1980s and have taken this into account. Mr MAIN has not committed any criminal offence for a significant period of time, including since his release from prison in 2016. Onerous Parole conditions have been imposed upon Mr MAIN to prevent his reoffending. Mr MAIN has been compliant with those conditions. Over the years, Mr MAIN has engaged in various programs designed to manage his substance abuse issues and his criminal behaviour. There is evidence that Mr MAIN benefits from substantial support from those around him, particularly from his partner, Ms Rafati.

…

47.    One cannot dispute the gravity of harm that may be occasioned should Mr MAIN engage in further criminal behaviour. However, I acknowledge there is limited evidence of a risk that Mr MAIN will in fact reoffend (beyond the risk posed by any ordinary Australian resident).

48.    Ultimately, though I have considered the risk of harm posed by Mr MAIN and, in doing so, the likelihood of Mr MAIN reoffending, it is unnecessary for me to reach a final view on these issues. Even if it is the case that Mr MAIN’s likelihood of reoffending is now the same as that of an ordinary Australian resident, I would still exercise my discretion under s 501A(3). In my view, a lack of risk does not outweigh the considerations of seriousness and community expectations to which I have given determinative weight.

33 That passage, and especially the last sentence, is at the heart of the issue that arises on one of Mr Main’s grounds. Although the Minister observed that there was a real question as to whether there was any risk of Mr Main reoffending, and that there was limited evidence that the risk of Mr Main reoffending was greater than the risk posed by any ordinary person, he ultimately determined that it was unnecessary to reach any final view because even if Mr Main’s likelihood of reoffending was the same as that of any ordinary Australian resident, that would not change the outcome, because “lack of risk” does not outweigh seriousness and community expectations.

34 Under the heading “Conclusion”, the Minister stated that each of sub-ss 501A(3)(c) and (d) was satisfied, and observed: “Thus, my discretionary power to cancel Mr MAIN’s visa under s 501A(3) is enlivened.” He observed that “[n]one of the additional matters considered above affect my state of satisfaction that cancellation is in the national interest”. Paragraph [51] was then in the following terms:

51.    Ultimately, I have decided to exercise that power and to cancel the visa. I have done so principally on the basis of the seriousness of Mr MAIN’s crimes and community expectations.

Legal principles

35 It is appropriate to consider principles relevant to the grounds relied upon by Mr Main. I shall not attempt a complete survey of the relevant authorities because they are too numerous for that. Unfortunately, they do not speak with one voice.

36 It is also important to bear in mind that the relevant statutory provisions take various forms.

37 Mr Main’s grounds include alleged failures by the Minister to have regard to mandatory considerations and alleged jurisdictional error in the sense recognised in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend). Having regard to those grounds, there are two broad areas of focus: the extent to which the Minister is required to consider the risk to the community caused by the visa holder’s continued presence in Australia, and the extent to which the Minister is required to consider the crime for which the visa holder was sentenced. Mr Main also relies upon irrationality and illogicality as a source of jurisdictional error.

38 The present statutory context is one in which the Minister is considering whether to set aside a decision of the ART to not cancel a relevant visa and to cancel that visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in the national interest. In Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 (Palmer), the following observations were made at [43] – 44:

43.    For the purposes of s 501BA(2)(b), it is well accepted that the concept of the “national interest” is broad and evaluative: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [57]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [156]-157: and, whilst the decisional freedom is not unbounded, the question is largely a political one: see Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at [40]; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 at [18].

44.    The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest: Vargas v Minister for Home Affairs (2021) 286 FCR 387 at 61; Gubbay v Minister for Home Affairs [2020] FCA 1417 at [56]; Candemir v Minister for Home Affairs (2019) 268 FCR 1 at [20]-[21], [24]: and it is therefore a matter for the Minister to determine: Carras calao at [158].

39 In the recent decision of EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155; [2025] FCAFC 128 at [31], Hill J provided a useful summary of the established approach to the “national interest”, referring to the above passages from Palmer and then observing:

At the same time, the exercise of the s 501BA power is conditioned on the requirement that it be exercised reasonably: see, for example, CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192… at 17; GCRF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415… at 15.

40 It may be accepted that the power in the current s 501A(3) is also so conditioned.

41 In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 (Heerey, Lindgren and Emmett JJ) (Gunner), the Court was dealing with ss 501 and 502 of the Migration Act in a different form from the current provisions. Section 501 of the Migration Act relevantly permitted the Minister to cancel a visa if, having regard to the person’s past criminal conduct, the Minister was satisfied that the person was not of good character. Section 502 relevantly provided that if the Minister decided that, because of the seriousness of the “circumstances” giving rise to the making of the decision, it was in the “national interest” that the person be declared to be an excluded person, the Minister could make an exclusion declaration the effect of which was that the person had no right to appeal to the Administrative Appeals Tribunal. Thus, although the legislative context is different (because “national interest” considerations determined the available procedural pathway for the applicant, rather than the direct outcome of his visa application), the question of how past criminal conduct bears on the “national interest” was somewhat analogous. At p 409, the Court noted that the “circumstances” for the purposes of s 502 were the respondent’s past criminal conduct, and said (bold emphasis added):

It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa.

42 It is unlikely a coincidence that the bolded words appear verbatim in paragraph [14] of the Reasons.

43 In Re Patterson; ex parte Taylor (2001) 207 CLR 391 (Patterson) at [77] – [80], Gaudron J, after observing that nothing in Gunner means that the convictions which result in a person failing the character test are, for that reason alone, sufficient to entitle the Minister to determine that it is in the national interest that the relevant document be cancelled (i.e. there must be a separate consideration of the national interest), observed that some crimes might be of such a nature or sufficiently serious so as to found a satisfaction that it is in the national interest to cancel a visa.

44 In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 (French, O’Loughlin and Whitlam JJ) (Madafferi) at [86] – [87], the Court referred to, and applied, these passages from Patterson and Gunner. Their Honours then noted that in Patterson, Kirby J had suggested by reference to the relevant second reading speech that cancellation in the “national interest” might occur in “exceptional or emergency circumstances”, and observed (at [89]) that:

With respect to that view, the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained “reasonably” – Re Patterson; Ex p arte Taylor at 447; 698 (Gummow and Hayne JJ, Gleeson CJ agreeing)…

45 Observations consistent with these authorities were made in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 (Huynh) per Kiefel and Bennett JJ. That decision concerned the previous form of s 501 of the Migration Act, which did not require consideration of the national interest. However, their Honours referred to the taking of the national interest into account consistently with the object of the Migration Act. After discussing previous cases as to the breadth of the discretion, their Honours said as follows (at [74]) (emphasis added):

A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences that have been committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment of a requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

46 In this passage, the use of the words “will inevitably result” echoes the unqualified expression from Gunner: “The national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa”. If those words were given a literal interpretation, the commission of a particular type of offence might legitimately result in cancellation without more.

47 On the other hand, there is authority to the effect that the risk to the community posed by the visa holder is a mandatory relevant consideration for at least one form of the relevant provisions.

48 In Taniel u v Minister for Immigration and Border Protection (2014) 225 FCR 424 (Mortimer J) (Tanielu), the Court was dealing with a decision by the Minister to cancel a visa pursuant to s 501(2) of the Migration Act, which provided (and still provides) that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. The provision is not concerned (at least explicitly) with the national interest, although the observations in Huynh set out earlier as to the role of the object of the Migration Act may be relevant in that regard.

49 At [120], Mortimer J referred to Huynh, observing that it was important to note that the observations in Huynh were made in the context of a submission put to the Full Court that the Minister was obliged to take into account the remarks of the Court of Appeal in sentencing the visa holder, which dealt with mitigating factors in her offending.

50 At [147] – [150], Mortimer J observed that the purpose of protection of the community is what distinguishes the exercise of power from one which is punitive and thus may be invalid by reason of Ch III of the Constitution of the Commonwealth, citing Djalic v Minister for Immigration and Multicultural Affairs (2004) 139 FCR 292; [2004] FCAFC 151 at 73 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 43. Reference was also made to NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) at 28, Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 (Smithers J), and Re Sergi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 (Davies J).

51 Mortimer J concluded (at [154]) that the risk of harm to the Australian community posed by the subject of the visa refusal or cancellation is a matter a decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. Her Honour stated (at [154]) that this was because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using “protection” in its broadest sense. Her Honour concluded (at [123]) that the risk of harm to the Australian community was a relevant consideration in accordance with the principles in Peko-Wallsend, in that without an assessment of that risk, it was difficult to see how the power would otherwise stay within constitutional limits and advance the purposes of objects of the Migration Act in general and of the cancellation provisions in particular. Her Honour observed (at [129]) that each of the criteria set out in s 501(6) which may cause a person to fail the character test involves the protection of the Australian community.

52 However, Mortimer J observed (at [138]) that whether or not the same consideration would be implied into the exercise of power by the Minister personally under s 501A:

may involve a different analysis, since the exercise of that power is expressly predicated on the Minister’s opinion of what is in the national interest. That is a power exercisable only after a decision favourable to the person has been made by the Administrative Appeals Tribunal or by a delegate. It is, in that sense, a veto power. Different and broader issues may be at work then, especially given it is a wholly personal power. In contrast, the construction of s 501(2) must operate consistently as between exercises of power by delegates, by the Tribunal and by the Minister.

53 I note that the relevant risk identified by Mortimer J is the risk to the community, rather than merely the risk of reoffending. A person who has engaged in significant offending could engage in the same offending again, or could engage in different offending, or could engage in harmful conduct more generally. Prior offending could bear upon the broader risk in various possible ways, including on the basis that a person who committed criminal offences might be more likely to engage in other crime, or might be more likely to engage in physically or financially harmful conduct (depending on the type of crime committed).

54 In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 (Bromberg J) (Gbojueh) at [43] – [44], reference was made, inter alia, to Huynh, Madafferi and Patterson as support for the proposition that the authorities which have considered s 501A(2), and the reference to the national interest in s 501(3), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister, where the exercise calls for a broad evaluative judgment, such that the Minister is “largely unrestrained”. However, Bromberg J added the following qualification (at [45]):

There is, however, one consideration that is so central to the subject matter dealt with by s 501A(2), that it is difficult to imagine that Parliament did not intend for it to be a consideration that the Minister is bound to take into account, both for the purpose of determining the national interest and the residual discretion. It is unlikely that the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen was intended as an optional consideration at the Minister’s election. In my view, and consistently with the view of the majority (Black CJ and Sackville J) in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346, the Minister is bound to consider that potential for harm to the Australian community in the exercise of the power conferred by s 501A(2).

55 With respect to Bromberg J, the principle articulated is not supported by what was said in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 (Lu). Lu was concerned with a different subject matter, being an inaccurate statement of the sentence received by the visa holder, not some general concern about the risk of harm. Justice Bromberg, at [54] – [55], went on to give a more accurate description of Lu, but then inferred (at [56]) that the real concern of Black CJ and Sackville J was about “the false impression that the misinformation created about the circumstances of the offending”, which he said was “personal circumstances”, such that the decision in Lu was in “tension” with Huynh. Lu is discussed in more detail below.

56 At [58], Bromberg J concluded that, in exercising his discretion, the Minister was bound to consider the “potential for harm to the Australian community”, which extended to considering the circumstances in which the offending occurred, “where those circumstances are relevant to the assessment of risk”. He observed that his view seemed at odds with Huynh but consistent with Lu.

57 I agree with Bromberg J that his view is at odds with Huynh. It is also seemingly at odds with Gunner, Mada f feri and the observations of Gaudron J in Patterson. With respect of Bromberg J, I do not agree that his view is consistent with, or supported by, Lu. I therefore treat the width of the principle stated in Gbojueh with caution, in light of the decisions of the Full Court just mentioned and the observations in Patterson.

58 These matters were considered further in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 (North, Jessup and Rangiah JJ) (Moana). Like Tanielu, the Court was dealing with s 501(2) of the Migration Act.

59 Justice Rangiah, with whom North J agreed, concluded (at [48], [66]) that the risk to the Australian community posed by the continued presence of the visa holder in Australia was a mandatory relevant consideration when the Minister exercises his or her discretion. Justice Jessup disagreed with this conclusion.

60 Justice Rangiah indicated that, whilst he reached the same result in that regard as was reached by Mortimer J in Taniela, he reached it for different reasons. At [50] – [56], Rangiah J reasoned that each of the criteria for failing the character test involves a risk of harm to the Australian community.

61 His Honour observed (at [57]) that it was unlikely that Parliament would require the Minister evaluate the danger, or risk, to the Australian community at the threshold stage, but then be at liberty to ignore that risk when exercising the discretion.

62 At [61], his Honour referred to Gbojueh, concerning s 501A(2), dealing with cancellation of a visa on national interest grounds. Justice Rangiah observed that ss 501(2) and 501A(2) “have in common a threshold issue concerning the character test and then the exercise of a discretion”, which allowed him to “draw support for my conclusions from his Honour’s reasoning”. For present purposes, that also means that it is not possible to distinguish Moana on the basis that it was concerned with s 501(2) of the Migration Act rather than s 501A.

63 At [63], Rangiah J referred to Patterson per Gaudron J, Gunner and Madafferi, concerning ss 501(3) and 501A of the Migration Act, noting they were described by the Minister as cases in which it had been said that a person may commit a crime of such a serious nature as to found a satisfaction that it is in the national interest to cancel his or her visa. In response to a submission that the effect of those cases was that the discretion might properly be exercised by reference to the expectations of the Australian community rather than the protection of the Australian community, Rangiah J disagreed that there was any neat distinction between the expectations of the Australian community and its protection, observing (at [63]):

If a crime is considered to be of such a nature that the expectation of the Australian community is that the person who has committed it should not remain in Australia, it is likely that at least part of the underlying rationale is the need to protect the community from a person who would commit such a crime and to deter others from committing such a crime.

64 However, at [72], Rangiah J observed that the effect of the cases establishing that the seriousness of the offence may, of itself, lead the Minster to conclude that a visa should be cancelled in the national interest was that the Minister may conclude that a visa should be cancelled in the exercise of his or her discretion without evaluating the risk of reoffending or engaging in harmful conduct. He observed (at [72]):

[T]he Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.

Justice Rangiah repeated that observation in the opening sentence of [74].

65 In light of these observations by the majority of the Full Court in Moana, it is again unlikely to be a coincidence that the Reasons, at [41], adopt the following language (emphasis in original):

If, in the future, Mr MAIN were to commit dangerous offending of the kind he has previously engaged in, the harm caused will likely be severe. It may, as has occurred twice in the past, cause death to members of the Australian community. In my view, any risk of this behaviour being repeated is intolerable.

66 However, two observations may be made about this important qualification in Moana. First, when Rangiah J says that the Minister is not bound to engage in an evaluation of the likelihood of future conduct that may cause harm, that must be read with the previous sentence, which refers to “any” risk: i.e. any positive, non-zero risk. That logic would not apply if the risk was properly assessed as nil. Zero times any number, however large, is still zero. Rather, the relevant proposition appears to be that it may be permissible for the Minister not to engage in a calculation or assessment of the degree of likelihood of reoffending if there is some risk and the Minister assesses that any risk is intolerable.

67 I do not interpret Moana as suggesting that, even if the Minister recognises that the risk of future misconduct might be non-existent (or, perhaps more accurately, no greater than the risk of misconduct from any other Australian), the Minister can put entirely to one side the question of risk. Moana decides that risk is a mandatory relevant consideration.

68 Secondly, Rangiah J, at [74], expressed the following further caveat:

That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf. Minister v Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

69 It may be recognised that in exercising a relevant power such as the present, the Minister is under no duty to evaluate the risk of harm to the Australian community in a particular way or to ascribe any particular characterisation to the quality of the risk: BSJ16 v Minister for I mmigration and Border Protection (2017) 252 FCR 82; [2017] FCAFC 78 at 44, citing Moana at [71], Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 (Brown) at [41], and Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Ayoub) at [44].

70 In Le v Minister for Immigration and Border Protection [2015] FCA 1018 at [51], Rangiah J reconciled his reasons in Moana with the decision in Huynh, observing that the decision in Huynh was to the effect that the Minister is not obliged to consider “specific factors, personal to the visa holder”, whereas the relevant consideration identified in Moana is cast at a higher level of abstraction and a lower level of particularity than the factual matters considered in Huynh.

71 I note that in MZAGK v Minister for Immigration and Border Protection (2014) 226 FCR 311; [2014] FCA 1190 (Tracey J), which otherwise represents what may be described as a restrictive view of the grounds for interference in Ministerial decision-making on the basis of mandatory relevant considerations, Tracey J, after referring to Gunner, Madafferi and Patterson, observed (at [34]) that the approach reflected in those authorities meant that the Minister will be able to decide that a risk exists and that any risk of re-offending is unacceptable. Consistently with the approach in Moana, that requires at least a positive finding as to risk.

72 In Ayoub, the Court (Flick, Griffiths and Perry JJ) expressed reservations (at [37]) as to the reasoning in Tanielu, and likewise Moa na, but concluded that it was unnecessary to decide whether they were correctly decided because the result would be the same in the particular case. The Court reiterated (at [44]) that there was no requirement for the Minister to evaluate the risk of harm in any particular way.

73 In Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] – 23 and Brown at [37] – 38, two Full Courts noted the tension between the authorities but concluded that it was unnecessary to resolve the correct position.

74 In AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; [2016] FCAFC 105 at [49] – 54, the Court: (a) noted the tension, (b) referred to the earlier Full Court decisions declining to resolve that tension, (c) said that the observations of Jessup J in the minority in Moana, disagreeing with Tanielu, were “pertinent”, (d) observed that in NBMZ at [25] – 27 a question was raised as to whether Huynh required reconsideration (but for a different reason), and (e) declined to resolve any of these questions.

75 In BSJ16 v Minister for Immigration and B order Protection [2016] FCA 1181, Moshinsky J referred to Moana and some of the subsequent authorities referred to above. On appeal, in BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82; [2017] FCAFC 78 (Collier, Murphy and Burley JJ), Moana was cited as a decision establishing the relevant principles and no reference was made to the controversy or to the other cases identified above.

76 Notwithstanding the history described above, no decision has overruled Moana. To the extent that Moana is consistent with Huynh, Gunner and Madafferi, I will follow Moana.

77 In my view, Moana has a role notwithstanding Huynh, Gunner and Madaferri, in the manner discussed above. The observations in Huynh, Gunner and Madaferri do not concern a situation where, notwithstanding past criminal offending, the visa applicant presents no ongoing risk of harm to the Australian community. Huynh, for example, concerns whether the Court is required to have regard to more detailed matters concerning the criminal conduct of the visa holder. It is implicit in those cases that a determination that a crime is sufficiently serious so as to found a satisfaction that it is in the national interest to cancel a visa is on the basis that the crime in question gives rise to a relevant risk to the community, on the basis that there is an implicit threat of recurrence.

78 Other legal principles relevant to the application are discussed below in the context of particular grounds.

Ground 2

79 I propose to deal with Ground 2 of the application, before turning to Ground 1 and Ground 3.

80 Mr Main contends that the Minister failed to exercise the residual discretion in s 501A(3) according to law, in two respects. First, Mr Main says that the Minister failed to determine a mandatory relevant consideration, being the risk to and associated protection of the Australian community. Secondly, Mr Main says that the Minister’s attribution of “determinative weight” to the gravity of the offending and community expectations before other relevant factors had been considered was illogical.

Whether the Minister failed to consider a mandatory relevant consideration

81 For the reasons set out above, and in light of Moana, the question of whether Mr Main poses a risk to the Australian community was a mandatory relevant consideration for the Minister when exercising his discretion.

82 The Minister submits that there was consideration of the risk to the Australian community, pointing to the section of the Reasons of nine paragraphs headed “Risk to the Australian community”. Whilst that submission has a superficial attraction, it does not withstand scrutiny. Having recognised that there is a “real question” as to whether there is any risk of Mr Main reoffending, the Minister declined to reach any conclusion as to whether Mr Main was a risk to the Australian community. That is made explicit in paragraph [48] of the Reasons, where the Minister says that although he has considered “the risk of harm posed by Mr MAIN and, in doing so, the likelihood of Mr MAIN reoffending”, he considered it unnecessary to reach a final view on those issues. In the same paragraph, the Minister states that “a lack of risk does not outweigh the considerations of seriousness and community expectations”. In the present case, the Minister declined to reach any conclusion on risk because of the Minister’s view that an absence of risk would not change the result.

83 It is not possible for the Minister to undertake the required consideration of whether Mr Main is a risk to the Australian community in circumstances where the Minister declines to reach any view on that very topic.

84 In that regard, simply reciting the language drawn from Moanna that there may be cases where any risk of reoffending may be intolerable in light of the seriousness of the offending does not overcome this deficiency, in circumstances where the Minister has declined to evaluate whether there is any such risk. The present case is not one where the Minister concluded that there was a risk of reoffending and a risk to the Australian community, but did not measure or assess the extent of that risk.

85 In the Minister’s written submissions at [24], there is a submission that s 501A(3) does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501A(3)(d) or in exercising the discretion in s 501A(3). Reference is made, inter alia, to Vargas v Minister for Home Affairs (2021) 286 FCR 387 at 61. However, that case involves distinguishing between s 501BA and s 501CA, where the latter requires the Minister to invite representations from the applicant and, having received and considered those representations, for the Minister to be satisfied that the person passes the character test or that there is another reason why the decision should be revoked. It is not some general observation that consideration of the “national interest” does not require the Minister to consider any particular matter.

86 I conclude that the Minister failed to give consideration to a mandatory consideration, being the risk that Mr Main posed to the Australian community, primarily from the risk of him reoffending.

Whether the decision was legally unreasonable

87 In Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517 at [62] – [63], Stellios J provides a convenient summary of the principles relating to legal unreasonableness. Relevant principles were also summarised in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539; [2025] FCAFC 115 at [88] – 94. It is well recognised that the threshold to show jurisdictional error on the ground of legal unreasonableness is high.

88 As noted above, the “national interest” is a broad and evaluative concept. However, although the Minister could take into account a potentially wide range of matters in assessing the national interest, in the present case the Minister’s consideration was limited to Mr Main’s past offending (including “community expectations” about the consequences of that offending). That was the only thing pertaining to Mr Main that was taken into account in assessing the national interest. Mr Main’s past offending is said to give rise to two national interest matters. The first matter is stated in paragraph [21] of the Reasons:

21.    … The national interest dictates that people who engage in multiple murders including premeditated murder should not have the benefit of an Australian visa. For this reason, I consider that cancellation is in the national interest.

This is stated as a conclusion. There is no further elucidation of what constitutes the relevant national interest, or how Mr Main’s prior offending bears upon it.

89 The second matter is stated in paragraphs [22] and [23] of the Reasons, as follows:

22.    … It is in the national interest that Australia’s migration system meets community expectations. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

23.    Plainly, the community would expect that a non-citizen in the position of Mr MAIN who has committed two murders, including premeditated murder, should have their visa cancelled. For this reason, I consider that cancellation is in the national interest.

90 The Reasons give “determinative weight” to these two matters. I will deal with each limb separately, but recognise that both limbs bear on the Minister’s ultimate conclusion.

91 In relation to the first limb, the seriousness or gravity of prior offending could potentially be relevant to the “national interest” having regard to:

(a) some extension of the notions of retribution and rehabilitation recognised in the criminal law: see the discussion in The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 55; Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [15] – 16;

(b) general deterrence (but not specific deterrence, because the person whose visa is cancelled is no longer present); or

(c) the risk of reoffending, and the resulting threat to Australians.

92 As recognised in Tanielu and the cases there cited (referred to earlier), the constitutionally valid consideration of prior offending is through the prism of the protection of the community, because of the risk of reoffending or the risk of further conduct from the visa holder detrimental to the community. In relation to the alternative considerations – the cancellation of the visa to further punish the offender, or the cancellation of the visa to deter other visa holders from committing an offence – it is not suggested that the Minister relied on either of those two alternative bases.

93 Any general notion that “murderers should not have visas” cannot be untethered from what is permissible for the Minister to consider. When viewed through the correct prism, the seriousness and gravity of the prior offending only has relevance insofar as it has a connection to a risk that the visa holder will cause harm to the community. Otherwise, it has no operative connection to the constitutionally valid subject matter.

94 In the present case, the Minister explicitly states, in the final sentence of paragraph [48], that “a lack of risk does not outweigh the considerations of seriousness… to which I have given determinative weight”. However, a “lack of risk” cannot, as a matter of logic, be weighed against a consideration that is necessarily grounded in the concept of risk. The reasoning is illogical and circular. It is evident that the Minister has misapprehended that the legitimate way in which the “seriousness and gravity of the offending” falls to be considered is by reference to the risk to the community.

95 Further, it would be illogical to give determinative weight to the seriousness of prior offending without considering the degree of risk to the community posed by the visa holder. That is an essential integer in any evaluation of the weight of that consideration. That does not mean that the degree of risk is a mandatory relevant consideration more generally. The Minister could, for example, reach a view that cancellation was in the national interest on any number of alternative grounds. As noted earlier, the national interest is a broad and evaluative consideration. But if the Minister chooses to rest a cancellation decision on the determinative weight of the seriousness of prior offending, then that cannot logically be assessed without assessing the degree of risk to the community that flows from the prior offending.

96 I then come to the second limb: “community expectations”. In the present case, this has an interrelationship with the seriousness of the offending, because it is only Mr Main’s prior offending that is relied upon in connection with “community expectations”.

97 It may be recognised that, insofar as a decision pertaining to the national interest is based on community expectations, such an assessment would ordinarily involve political considerations and value judgments that are a matter for the Minister. However, as recognised by the majority in Moana at [63], in relation to community expectations about prior offending there is no neat delineation between the expectations of the Australian community and its protection, in that it is likely that at least part of the underlying rationale behind any “community expectation” is the concern about being protected from the risk of harm that a criminal could pose to the community.

98 In the present case, the assessment of “community expectations” by the Minister is wholly divorced from any consideration of risk, either actual or perceived. Again, this is explicit not just implicit. The following passages from the Reasons make this clear:

22.    … The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

…

48.    … In my view, a lack of risk does not outweigh the considerations of … community expectations to which I have given determinative weight.

99 Again, a “lack of risk” cannot be weighed against a consideration that is grounded, to at least some extent, in the concept of risk. It cannot logically be suggested that whether or not the community would expect a visa to be cancelled is wholly unrelated to matters pertaining to the risk of harm, including when the crime occurred, whether the person has reintegrated into the community, or whether there is otherwise any risk of reoffending or other harm to the community. Such a suggestion would, for one thing, be fundamentally inconsistent with the notion of redemption that is basal to our criminal justice system and cultural norms.

100 It is illogical and irrational to consider “community expectations” about a visa cancellation in response to a crime in a manner wholly divorced from consideration of the risk to the community, or to assert that a lack of risk does not outweigh a community expectation that could only logically be assessed by considering (inter alia) that very risk.

101 For the reasons set out above, the reasoning of the Minister on both the “seriousness and gravity of the offending” limb and the “community expectations” limb lacks an intelligible justification and is legally unreasonable.

102 The Minister’s approach to these limbs is clearly material: the conclusion that the two limbs were “determinative”, and that it was unnecessary to consider risk, was the basis on which the Minister reached his conclusion on the exercise of the discretion.

103 The applicant has established both of his complaints under Ground 2.

Ground 1

104 Ground 1 concerns an alleged incorrect characterisation of Mr Main’s past criminal offending. Mr Main relies upon two asserted factual errors in the decision in relation to the characterisation of his prior offending.

105 The first is the statement in paragraph [16] of the Reasons that (emphasis in original):

Adams J described the killing of Mr Mitchell as falling within ‘the category of worst cases of murder’ Attachment E.

106 Attachment E was a decision of the New South Wales Court of Criminal Appeal of 13 February 2009, which was before the Minister when making the decision (the CCA Decision). The CCA Decision was dealing with a Crown appeal from the resentencing decision of Adams J of 2008. Paragraph [13] of the CCA Decision included the following passage:

A further application was heard and dismissed by Adams J on 19 November 1999. His Honour ordered that the respondent be restrained from making another application for a period of two years. He found that the killing of Mr Mitchell fell within the category of worst cases of murder, that the killing of Cameron was "a cold blooded, pre planned murder for reward".

107 There are two problems with the statement in paragraph [16] of the Reasons set out above. The first is that, apparently unbeknownst to the Minister (because the 19 November 1999 decision of Adams J was not before him), this statement in the CCA Decision was incorrect. In fact, in his 1999 decision, Adams J said that the killing of Mr Mitchell did not fall within the category of worst cases of murder. The Minister appears to have relied upon the summary in the CCA Decision. Although the 1999 decision was not before him, a submission by Mr Main to the Minister contained the correct information (but not an assertion that the Court of Criminal Appeal was incorrect).

108 The second problem with the statement in paragraph [16] of the Reasons is that, although the Minister referred to a statement attributed to Adams J, his Honour also said the contrary to this in his 2008 resentencing decision, which was before the Minister, and indeed cited in paragraph [18] of the Reasons. In that decision, Adams J said that he was unable to agree that the Mitchell murder was the worst type of case. Therefore, Adams J said in two separate decisions that the Mitchell murder was not in the worst category of case.

109 It is sufficient for present purposes to find that the Minister’s statement about the characterisation by Adams J of the Mitchell murder was incorrect and contrary to information which he had before him at the time of making the decision. The real issue for present purposes is what flows from this.

110 The second factual error relied upon by Mr Main is in connection with the Cameron murder. In relation to this murder, the Minister said this, at paragraph [18] of the Reasons (emphasis in original):

Adams J described the Cameron murder as a ‘contract killing’ and as ‘a cold blooded, pre-planned murder for reward…’ Attachment F.

111 However, Attachment F was the decision of Adams J of 2008, and what Adams J said in that decision was as follows:

Nevertheless, I think I should accept the submission of Mr Haesler SC for the applicant that, without going behind the verdict, there is room for doubt that the death of Mr Cameron was quite the cold, calculated, planned murder of a would-be witness as I had previously thought. I am also minded to accept that the applicant was himself affected by having taken heroin at the time he shared his syringe with Mr Cameron.

112 This issue is therefore slightly different from the first issue, in that it is not that Adams J did not make such an observation. Rather, unusually, the same judge had occasion to revisit the matter and, with the benefit of further information, changed his view. Further, it was the subsequent decision (not the previous decision) that was actually before the Minister and identified as Attachment F.

113 The applicant says that the description in the 2008 judgment, which was before the Minister and expressly identified by the Minister as the relevant reference, supersedes anything that might have been said by Adams J previously. I accept the applicant’s submission in this regard. The statement by the Minister at paragraph [18] of the Reasons as to the characterisation of the crime by Adams J was superseded. At the time of the Minister’s decision, it was not an accurate statement as to the characterisation given by Adams J to this offence. I find that the Minister made a separate factual error in this regard, being a misdescription of the characterisation that Adams J gave to the Cameron murder.

114 Each of the errors relied upon by Mr Main is an error of fact. However, each is an error of fact as to the characterisation that a judge of the Supreme Court of New South Wales placed upon each murder, rather than an error as to any underlying objective fact about the crimes themselves or the relevant sentence.

115 In his formulation of Ground 1, the applicant says that:

(a) the decision to cancel Mr Main’s visa is vitiated by jurisdictional error on the basis of irrationality, illogicality and/or legal unreasonableness because of the incorrect characterisations of the applicant’s past offending; and

(b) the decision is also vitiated by the fact that the formation of the state of satisfaction required to determine that it was in the national interest to cancel the visa was dependent on an error so fundamental as to vitiate the decision.

116 Described in that way, the legal basis of the applicant’s case, particularly ground 1(b), is slightly unclear. However, in his submissions, the applicant relies on Lu, being a case about jurisdictional error in the Peko-Wallsend sense. In his written submissions, the applicant submits that it is established that the formation of the state of satisfaction that cancellation is in the national interest will be vitiated by jurisdictional error if the factual premise adopted about a person’s criminal history and the degree of criminality in their offending is wrong, citing Lu, Gbojuej, Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364 (Ruatita) and WCJS v Minister for Home Affairs [2021] FCA 1093. Again, that is a reference to a jurisdictional error in the Peko-Wallsend sense.

117 In Lu, Sackville J, with whom Black CJ agreed on this point, analysed what the Minister was required to consider for the purposes of s 501A(2) of the Migration Act, in a context where the Minister had misapprehended the applicant’s sentence. Justice Sackville observed (at [55]):

It is within the scope and purpose of s 501A(2) of the Migration Act, which allows the Minister to set aside the “original decision” [in circumstances involving the requirements of both the failure to pass the character test and the satisfaction that cancellation is in the national interest] that the Minister should have regard to the offences for which the person was convicted and the sentences imposed in respect of those offences. As Wilcox J observed in Huynh at 136-137 [43], these are essential matters in assessing the degree of criminality in the offences and their significance in determining whether it is desirable to cancel the person’s visa and to remove him or her from Australia. In short, they indicate the seriousness of the person’s conduct and the threat he or she poses to the Australian community… It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences.

118 In Lu, the majority concluded (at [28] per Black CJ and at [60] per Sackville J) that the relevant error related not just to the length of the sentence imposed but also to the nature and seriousness of the offences (including potentially what drug was involved). Justice Sackville made the following observation (at [60]):

The erroneous information conveyed to the Minister and on the basis of which he was invited to act, suggested that the appellant had committed drug offences while in custody of such seriousness that a nine months sentence was warranted… The Minister might have assumed from the length of the sentence that the conviction related to heroin or some other so-called “hard” drug.

Similar observations were made by Black CJ at [28].

119 However, it is also relevant to bear in mind what was said by the majority of the Full Court in Huynh at [74] per Kiefel and Bennett JJ. To recap, that included the following:

If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences that have been committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment of a requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

120 It might be arguable that, having regard to the breadth of the discretion, the Minister is not required to consider, in a Peko-Wallsend sense, what might be described as a characterisation of a relevant offence – e.g. whether it is the worst category of case. The characterisation of the offence might have no role in the way in which the Minister exercises the relevant power. The Minister might, for example, place reliance on a national interest consideration that has nothing to do with the character of the offence.

121 However, once one accepts, consistently with Lu, that the Minister must have regard to the offences of which the visa holder has been convicted and the nature of those offences, it is within the same concept (although potentially at its outer limits) that the “offence” includes the general character of the offence because that forms an integral part of the understanding of the criminality which the Minister is considering. As noted above, the error recognised in Lu was not just in relation to the sentence but in relation to the nature and seriousness of the offence (including that it might relate to “hard” drugs).

122 In the present case, the perceived “seriousness” of the applicant’s offending, both in a direct sense and in relation to community expectations about that offending, was the means by which the Minister reached the decision to cancel the visa.

123 The gravamen of the Minister’s submissions was directed to the materiality part of the assessment of jurisdictional error – i.e. whether there is any realistic possibility that the Minister might have reached a different decision. The respondent submitted that each error was of minor significance in context, having regard to the overall reasoning, and that the Minister was entitled to reach the same characterisation of the offences himself based on the material before him. The Minister said that the present case could be distinguished from cases such as Lu, SLYN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 or Ruatita on the basis that, unlike those cases, there was no crisp factual error. It was submitted that there was no error that went to “the actual fact of offending” (which I interpret to be a reference to the objective circumstances of the offending or the sentence), but rather was an issue about how the prior conduct might be characterised.

124 The Minister emphasised that critical parts of the Reasons did not depend upon any characterisation of the murders, except that the second murder was premeditated. The respondent observes that:

(a) at paragraph [21] of the Reasons, the Minister states that:

The national interest dictates that people who engage in multiple murders including premeditated murder should not have the benefit of an Australian visa. For this reason, I consider that cancellation is in the national interest.

(b) at paragraph [23] of the Reasons, the Minister states that:

Plainly, the community would expect that a non-citizen in the position of Mr MAIN who has committed two murders, including premeditated murder, should have their visa cancelled. For this reason, I consider that cancellation is in the national interest.

and those key passages do not depend upon the question of characterisation complained of by the applicants.

125 Notwithstanding these submissions, I consider that there is a realistic possibility that the relevant factual errors had a bearing on the decision, and in the absence of those errors the decision might well have been different. In circumstances where:

(a) the Minister expressly referred to statements of an experienced criminal judge of the Supreme Court of New South Wales characterising Mr Main’s crimes, one of which is erroneous because the judge never said it, and another of which was clearly superseded because the judge came to realise that his earlier description was incorrect and instead expressed a different and much more nuanced view (where the later decision was before the Minister, and expressly referenced by him);

(b) those statements formed a significant part of what was otherwise a relatively brief description of the seriousness of the criminal conduct under the heading “Seriousness and gravity of criminal offending” – they were not peripheral to that description;

(c) the Minister reasoned, at paragraph [14] of the Reasons, that the seriousness and gravity of Mr Main’s offending bears upon the question of whether cancellation is in the national interest, because the national interest “dictates that people who engage in sufficiently serious crimes should not have the benefits of an Australian visa”;

(d) having recited the facts, including the erroneous and superseded characterisations, the Minister observed that “the gravity of Mr MAIN’s offending is difficult to overstate”;

(e) when discussing the discretion (at paragraph [26] of the Reasons), the Minister said that he had “already addressed the seriousness and gravity of Mr MAIN’s crimes” and that these factors were “also relevant to the question of whether I should exercise my discretion”;

(f) the Minister decided that the seriousness of the offending, along with community expectations relating to that seriousness, was “determinative” such that it outweighed all other matters (paragraph [27] of the Reasons); and

(g) when expressing his ultimate conclusion, the Minister observed (at paragraph [51] of the Reasons) that ultimately he had decided to exercise the power to cancel the visa and had done so “principally on the basis of the seriousness of Mr MAIN’s crimes and community expectations”,

it cannot be said that the matters relied upon by the applicant did not alter the result.

126 The Minister’s perception of the seriousness of Mr Main’s conduct was central to the reasoning process. Indeed, the entire decision turned on that issue. Whilst it is possible that any murder, whether in the worst category of case or not, or whether a “cold blooded, pre-planned murder for reward…” or not, would have led to the same conclusion, that is not at all clear in circumstances where the stated outweighing of any other factor (including any risk of reoffending) was said to be based on the seriousness of the offending, being seriousness that the Minister described as “difficult to overstate”, but where the Minister’s own perception and description appeared to have been influenced by the relevant factual deficiencies.

127 Thus in the present case, the centrality of what the Minister described as the “seriousness” of the conduct to the reasoning process, and the giving of determinative weight to that matter, means that factual errors going to that characterisation were potentially determinative of the outcome.

128 Ground 1 has been established.

Ground 3

129 In light of the conclusions on Grounds 1 and 2, I will consider Ground 3 more briefly. By Ground 3, Mr Main asserts that the Minister failed to reach the requisite level of satisfaction that cancellation was in the national interest so as to enliven the discretion in s 501A(3), because:

(a) the Minister was required to attain the state of satisfaction reasonably, and in order to do so it was incumbent on the Minister to articulate expressly what the national interest required in the circumstances of the case;

(b) the Minister failed to do so, or alternatively simply mirrored the character test; and

(c) in determining whether cancellation was in the national interest, the Minister failed to take account of a mandatory relevant consideration, being the risk to, and associated protection of, the Australian community.

130 I have already dealt with the third of these matters in Ground 2 above.

131 In relation to the first and second matters, I do not agree that the Minister has failed to specify what the national interest required. In relation to community expectations, the Minister states in the Reasons at [22] that “[i]t is in the national interest that Australian’s migration system meets community expectations”. That makes plain the basis on which the Minister considers that the satisfaction of community expectations is in the national interest. In the Reasons at [23], the Minister states the content of the relevant community expectations, being that the community would expect that a non-citizen in the position of Mr Main who has committed two murders, including premeditated murder, should have his visa cancelled.

132 In relation to the seriousness of the conduct, again there is a tolerably clear statement by the Minister of the national interest. In the Reasons at [21], the Minister states that the national interest dictates that people who engage in multiple murders including premeditated murder should not have the benefit of an Australian visa. Such a bald and truncated statement of the national interest may give rise to other problems, such as a failure to have regard to mandatory considerations or unreasonableness, as it has in this case. However, having regard to the broad and evaluative nature of the Minister’s power, it is not objectionable per se that the Minister articulates the relevant national interest in a way that might not be persuasive to numerous people as a statement of political values, provided that the relevant national interest is identified.

133 Mr Main placed reliance on the decision of Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350 (Colvin J) (Moli). In Moli, Colvin J observed (at [101]) that it would not be sufficient for the Minister simply to state that cancellation of a visa was in the national interest, without identifying the relevant national interest which was satisfied by cancellation (or, as Colvin J put it, without any specific conception as to why cancellation is in the national interest). However, in the present case the Minister did not merely state that cancellation of Mr Main’s visa was in the national interest. Like the position in Moli, in the present case the Minister identified the relevant national interest that he relied upon.

134 In Moli, at [105], in a passage relied upon by Mr Main, Colvin J went on to say that, in addition to a case where the Minister does not specify or articulate the national interest, if the Minister:

purports to cancel a visa in circumstances where no reasonable person could be satisfied that the cancellation would serve, promote or advance the formulated aspect of the national interest, or makes a decision in circumstances where it may be adjudged to be legal unreasonable in the sense that no reasonable Minister might justify the cancellation by reference to any such formulation, then the pre-condition will not be met and the power to cancel will not arise.

However, that is a different from Mr Main’s Ground 3. These matters are properly viewed as aspects of legal unreasonableness. Mr Main has succeeded on that ground.

135 To the extent that Ground 3 raises non-duplicative matters not already dealt with in Grounds 1 and 2, it has not been established.

Conclusion

136 Mr Main has established Grounds 1 and 2 of his application. A writ of certiorari should issue, and the Minister should pay Mr Main’s costs of the proceedings.

| I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moore. |
Associate:

Dated:    25 March 2026

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