Minister for Immigration and Multicultural Affairs v SSVJ - Visa Cancellation, Irrational Reasoning Review

Original Word Document (104.3 KB) Federal Court of Australia

Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45

| Appeal from: | SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954 |
| | |
| File number(s): | NSD 1696 of 2025 |
| | |
| Judgment of: | PERRY, KENNETT AND SHARIFF JJ |
| | |
| Date of judgment: | 13 April 2026 |
| | |
| Catchwords: | ADMINISTRATIVE LAW – MIGRATION – where the respondent’s permanent visa was cancelled by a delegate of the Minister following his criminal convictions – where the (now repealed) Administrative Appeals Tribunal (the Tribunal) set aside that decision and revoked the cancellation – where the appellant overrode the Tribunal’s decision and cancelled the respondent’s visa pursuant to s 501BA of the Migration Act 1958 (Cth) following his criminal convictions in 2020 – whether the appellant engaged in irrational reasoning in deciding that it was in the national interest to cancel the respondent’s visa – whether the appellant engaged in irrational reasoning by making purported assessments of the respondent’s circumstances and dispositions based on outdated factual materials |
| | |
| Legislation: | Acts Interpretation Act 1901 (Cth) s 25D

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 48A, 48B, 189, 196, 501, 501BA, 501CA, 501G |
| | |
| Cases cited: | CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634

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

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

KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958

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

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992

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

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506

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

Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165

Sharpe v Wakefield [1891] AC 173

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; 311 FCR 539 |
| | |
| Division: | General Division |
| | |
| Registry: | New South Wales |
| | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| | |
| Number of paragraphs: | 53 |
| | |
| Date of hearing: | 26 March 2026 |
| | |
| Counsel for the Appellant: | Mr S Lloyd SC with Mr G Johnson |
| | |
| Solicitor for the Appellant: | Sparke Helmore Lawyers |
| | |
| Counsel for the Respondent: | Mr D Hughes SC with Mr R Harvey |
| | |
| Solicitor for the Respondent: | Legal Aid NSW |
ORDERS

| | | NSD 1696 of 2025 |
| | | |
| BETWEEN: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant | |
| AND: | SSVJ

Respondent | |

| order made by: | PERRY, KENNETT AND SHARIFF JJ |
| DATE OF ORDER: | 13 April 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Order 2 of the orders made by the primary judge be set aside and there be no order as to the costs of the proceedings below.

3. The appellant pay the respondent’s costs of the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 There are two issues in this appeal. One is whether the appellant (the Minister) engaged in irrational reasoning in the course of deciding that it was in the national interest for the visa held by the respondent to be cancelled by giving significant weight to the protection of the community while accepting, elsewhere in his reasons, that cancelling the visa would not result in the appellant being removed from Australia or detained. The other – raised by a notice of contention – is whether the Minister engaged in irrational reasoning by making what purported to be assessments of the respondent’s circumstances and dispositions, when all of the relevant factual material before the Minister was at least thirteen months old.

2 The respondent is a national of South Sudan who arrived in Australia in 2007. In or around 2006 he was granted a Class XB Refugee (subclass 200) visa. This was a permanent visa, entitling the respondent to remain in Australia indefinitely.

3 On 13 February 2020 the respondent was convicted at the Goulburn District Court of three counts of Aggravated Sexual Assault – Victim with Cognitive Impairment and sentenced to a term of imprisonment for six years. On 7 May 2020 a delegate of the Minister formed the opinion that the respondent failed the character test in s 501(6) of the Migration Act 1958 (Cth) (the Act) by reason of having a “substantial criminal record” (s 501(6)(a)), a conclusion which required his visa to be cancelled pursuant to s 501(3A) of the Act (the cancellation). No challenge has been made to that decision.

4 Pursuant to s 501CA of the Act, the Minister was required to invite representations from the respondent about revoking the cancellation and, should representations be made, to consider whether the cancellation should be revoked. For reasons which do not need to be recounted here, it was not until January 2022 that the respondent made representations seeking revocation of the cancellation. On 26 October 2022, a delegate of the Minister declined to exercise the power in s 501CA(4) to revoke the cancellation. The respondent then applied to the (since repealed) Administrative Appeals Tribunal (the Tribunal) which, on 19 May 2023, set aside the decision of the delegate and substituted a decision revoking the cancellation.

5 Section 501BA of the Act confers power on the Minister, acting personally, to override a decision of the Tribunal in these circumstances and substitute a decision cancelling the visa. At times relevant to this appeal it provided as follows.

501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

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

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Note: For notification of decisions under subsection (2), see section 501G.

6 On 17 June 2024 the Minister made a decision to exercise the power in s 501BA(2) and again cancel the applicant’s visa (the Minister’s decision).

7 The respondent sought judicial review of the Minister’s decision, invoking the jurisdiction of the Federal Court under s 39B of the Judiciary Act 1903 (Cth). A judge of the Court made orders on 15 August 2025 setting aside the Minister’s decision and ordering the Minister to pay the respondent’s costs. The Minister has appealed from that judgment.

The Minister’s reasons

8 The Minister was satisfied that the respondent failed to pass the character test in the way referred to in s 501BA(2)(a)(i). This part of the reasoning is uncontroversial.

9 Next, the Minister assessed the national interest. He did so by reference to the need to protect the community (at [17]-[49]) and the expectations of the Australian community (at [50]-[54]). Having addressed these matters, the Minister concluded (at [55]-[57]) that cancellation of the respondent’s visa was in the national interest.

10 The Minister then turned to the exercise of the discretion conferred by s 501BA(2). He discussed a series of topics including the best interests of any minor children (at [60]-[61]), the respondent’s ties to Australia (at [62]-[66]), the legal consequences of the decision (at [67]-[75]) and the impediments that the respondent would face if he were removed to South Sudan (at [76]-[79]). Having weighed these various matters, he concluded at [80]-[88] that the power of cancellation should be exercised.

11 The aspect of the Minister’s reasoning that gave rise to issues in the Court below was how the Minister analysed the protection of the community, in the light of his acceptance that the respondent was a member of the class of persons to whom the reasoning of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ) applies. For many years prior to the decision in NZYQ it had been accepted that ss 189 and 196 of the Act (which on their face require an unlawful non-citizen to be detained until they are removed from Australia (pursuant to s 198) or granted a visa) authorised indefinite detention in the case of a non-citizen whom it was not practicable, or likely to become practicable, to remove. In NZYQ, the High Court overturned that understanding and held that the Act did not authorise detention of a non-citizen if there was no real prospect of the removal of that non-citizen becoming practicable in the reasonably foreseeable future.

12 In his reasons in the present case the Minister accepted that the respondent was a person in respect of whom Australia had non- refoulement obligations and was therefore not liable to removal to South Sudan under s 198 (at [70]-[71]). There was no present prospect of removing him to any third country (at [73]). Having noted the effect of NZYQ (at [72]), the Minister said the following at [74]-[75].

I am aware that if a cancellation decision is made under s501BA, [the respondent] will not be taken into detention. He will continue to reside in the community. I will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.

I am also aware that if a cancellation decision is made under s501BA in circumstances where [the respondent’s] previous application for a protection visa was refused, there would be significant restrictions on [the respondent’s] ability to apply for another visa. In particular, I understand that [the respondent] would be prevented by s48A of the Act from making a further application for a protection visa while he is in the migration zone (unless a Minister administering the Act determines, under s48B, that s48A of the Act does not apply to him). Any application for a visa other than a protection visa would be subject to s501E of the Act, which would apply to [the respondent] as a result of a cancellation decision under s501BA, with the effect that his visa would remain cancelled under s501. This would mean that, without leaving the migration zone, he would not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), for which he could only apply in response to an invitation. I have given this consideration significant weight.

13 Earlier, in the course of considering the national interest, the Minister had discussed the nature of the respondent’s criminal offending and the extent of rehabilitation and remorse and then concluded as follows at [49].

Considering the nature and seriousness of [the respondent’s] conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of [the respondent] 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.

14 After stating that conclusion, the Minister turned to the “[e]xpectations of the Australian community”. He proceeded on the basis that “ the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia ” (at [50]) and gave this consideration “significant weight towards a finding that it is in the national interest to cancel [the respondent’s] visa” (at [54]). At [57], having “regard to all of the above”, the Minister concluded that the cancellation of the respondent’s visa was in the national interest.

The decision of the primary judge

15 The ground of review advanced below was that the Minister’s exercise of power was “illogical, irrational, and/or legally unreasonable”. The particulars were lengthy and need not be set out here. Along with some matters that appear not to have ultimately been pressed, they drew attention to the Minister’s acceptance that the respondent would be released into the community and the lack of analysis of how, in those circumstances, cancellation of the respondent’s visa would affect the risk that he posed to the Australian community.

16 The essence of the primary judge’s reasoning can be seen in the following passages (at [17]-[21]).

The Minister’s reasons do not explain why it is that the cancellation of the applicant’s visa would protect the Australian community from the possibility of his further criminal behaviour. Rather than explaining why this protective effect arose, the Minister’s reasons merely assume that there was such a protective effect. The presence of this unexplained assumption appears at a number of junctures in the Minister’s reasons. A good example is afforded by 49 and 56:

...

Whilst I would characterise the Minister’s approach to this issue as involving an unstated assumption, the applicant submits that it is to be inferred that the Minister reasoned that the cancellation of the applicant’s visa would result in him being taken into immigration detention and that this was devoid of any rationality where the effect of NZYQ was that he could not be taken into immigration detention.

I do not accept this submission. The Minister’s reasons must be construed as a whole and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ [(Wu Shan Liang)]. Where the Minister expressly acknowledged at [73]-[74] that the applicant was a member of the NZYQ cohort and would continue to reside in the community even if his visa were cancelled, it is difficult to infer that he also found that the applicant would be taken into immigration detention if his visa were cancelled. To accept that would be to accept that the Minister’s thought patterns were disordered. I would not lightly reach such a conclusion.

However, this does not mean that the applicant’s challenge fails. The Minister’s process of reasoning depends for its efficacy upon the unstated assumption that the effect of the visa cancellation was that the community would be protected from the applicant’s criminal behaviour and that its expectations in that regard would be met. From the Minister’s reasons it is impossible to discern why the Minister thought that cancelling the applicant’s visa would have any impact on the protection of the community when, as the Minister accepted, NZYQ meant that the applicant would remain at large even if his visa was cancelled.

As such the decision lacks an intelligible justification…

(Emphasis added.)

The appeal

17 The Minister’s sole ground of appeal is that the primary judge erred in making the finding set out above, because the reasons for the decision did provide an “intelligible justification” for the finding that the need to protect the Australian community from criminal or other serious conduct weighed in favour of cancelling the respondent’s visa. The respondent has raised a further issue by way of a notice of contention, which is addressed below.

The question that arises

18 Two steps are involved in the exercise of the power in s 501BA. First, the Minister must be satisfied as to the two matters set out in s 501BA(2)(a) and (b) (including, relevantly here, that it was in the “national interest” that the visa should be cancelled). Secondly, and only if that state of satisfaction exists, the Minister has a discretion to cancel the visa.

19 The submission accepted by the primary judge was to the effect that no foundation could be seen in the Minister’s reasons for one of the integers of the Minister’s state of satisfaction concerning the national interest: ie, that the protection of the community from criminal or other serious conduct “weighs heavily in support of cancellation”. There was no discernible foundation because there was no explanation of how, in circumstances where cancellation would not lead to the respondent being removed or detained, cancelling the visa had any connection with protecting the community.

20 It was not in issue that “the national interest” is a matter for evaluation and “largely a political question” (Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]). However, when a power is conditioned on the decision-maker being “satisfied” of a particular matter (even one as broadly evaluative as “the national interest”), the condition will be found not to have been met if the relevant state of satisfaction either did not exist in fact or was “irrational, illogical or not based on findings or inferences of fact supported by logical grounds”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 (Allsop CJ, Besanko and O’Callaghan JJ) at 35 (citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at 38 and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [52], 173). This entails that the relevant state of satisfaction must be not only available on the material before the decision-maker but arrived at by a process of reasoning that conforms to basic notions of rationality. These requirements are aspects of “the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 90 (Li) (original emphasis)).

21 It is useful at this point to note the real but sometimes subtle distinction between a purported exercise of discretion (where the term “unreasonable” aptly describes a decision that lacks an evident and intelligible justification (see eg Li at 76) on the one hand and the formation of a state of satisfaction (where findings or reasoning that lack a probative basis lead to a decision properly described as “irrational, illogical or not based on findings or inferences of fact supported by logical grounds” (see eg SGLB at [38] and Applicant S20 at 52) on the other. The Full Court in Djokovic at [29]-[35] discussed these two kinds of case together (as they are related emanations of the same basic principle), but was careful to note the distinct existence of both. The issues that arose in Djokovic concerned a state of satisfaction, as does the issue in the present appeal.

22 In these reasons we have not used the terminology of the decision lacking an “intelligible justification” as the primary judge did. That phrase appears to have entered the lexicon of Australian administrative law by way of Li (above), where it was applied to a purported exercise of discretion that was found not to have been supported (or explained) by reference to considerations relevant to the statutory purpose. The argument that succeeded before the primary judge was to the effect that the Minister’s satisfaction that cancellation of the respondent’s visa was in the national interest was “irrational, illogical or not based on findings or inferences of fact supported by logical grounds”. This observation, of course, does not mean that the primary judge fell into any appealable error.

23 The submission advanced below was (as the primary judge noted at [26]) not a complaint about inadequacy of reasons. Rather, it assumed that the Minister’s statement of reasons complied with the obligation to give reasons in s 501G(1) of the Act (read with s 25D of the Acts Interpretation Act 1901 (Cth)) and that all of the facts that the Minister considered to be material (and the evidence relied on in finding those facts) were therefore referred to in the statement of reasons. As noted in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 5, [35], 37, 69 (Yusuf), that assumption allows inferences to be drawn that matters not mentioned by a decision-maker were not considered material and such an inference may lead to the identification of error.

Resolution

24 The basic architecture of the Act makes the holding of a visa necessary for a non-citizen to enter Australia lawfully or to remain in the Australian community. A person who is reasonably suspected to be an “unlawful non-citizen” (ie, one who does not hold a visa) must be detained by an officer (s 189) and remain in detention until they are removed from Australia or granted a visa (s 196). Therefore, in most cases (and in all cases, as the Act was understood prior to NZYQ), it goes without saying that cancelling a non-citizen’s visa will lead to their detention (and removal as soon as reasonably practicable) and therefore operate to protect the community against potential criminal activity by that non-citizen.

25 In the present case the Minister expressly acknowledged that cancelling the respondent’s visa would not lead to him being detained and there was currently no prospect of him being removed. The Minister did not explain, in the course of his reasoning as to the national interest, why the protection of the community would be advanced by cancelling the respondent’s visa (and therefore why the protection of the community had any relevance to whether it was in the national interest that the visa should be cancelled). However, it does not follow from that lack of explanation that the Minister’s conclusion as to the national interest lacked a rational foundation.

26 In Applicant S20 at [14] Gleeson CJ observed:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole…

27 In decisions such as the present one, it is common for the Minister to be presented with a bundle of relevant material and a draft statement of reasons and to adopt that statement by signing it. We infer that that is what happened here. However, the point made by Gleeson CJ remains apposite. The Minister should not be thought to have approved each paragraph of the statement of reasons before moving on to the next one. It is much more likely that the Minister considered the entire statement of reasons, together with the material put before him, before being satisfied that it adequately stated his reasons for (a) concluding that use of the power in s 501BA(2) was in the national interest and (b) deciding to exercise that power. The reasons must be understood as a whole. They must also be read fairly and not with an eye keenly attuned to the perception of error (Wu Shan Liang at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ)).

28 The conclusion that protection of the community weighed “heavily in support of cancellation in this case in the national interest” must therefore be taken to have been reached in the light of what, as exposed in the Minister’s reasons as a whole, the Minister expected to be the consequences if the respondent’s visa was cancelled. Those consequences did not include detention and removal, at least in the foreseeable future. However, they did include (as noted at [74]) the grant of some other visa to the respondent which would be subject to conditions the subject of a future decision. That future decision would, obviously, take into account the respondent’s criminal record. The consequences also included (as noted at [75]) restrictions on the classes of visa for which the respondent could apply in the future.

29 Read as a whole, therefore, the Minister’s reasons reveal a rational foundation for the understanding implicit in [49] that cancelling the respondent’s visa would provide some protection for the community against further criminal conduct on his part.

30 The view to which we have come is consistent with Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378 (Plaintiff S22) and XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; 311 FCR 539 (XKTK), although we do not understand either of these cases to establish a binding principle of law that governs the decision in the present case.

31 Plaintiff S22 was a challenge to a decision by a delegate not to revoke a visa cancellation under s 501CA(4). One of the issues was whether the delegate had misapplied a clause in the applicable ministerial direction requiring weight to be given to the expectations of the Australian community. The relevant “expectations” were set out in the direction and included that in some circumstances the character of an offence would be such that “the person should not be granted or continue to hold a visa”. The delegate’s reasoning had brought to bear that “expectation”, while also accepting that the visa holder (who was also a member of the NZYQ cohort) would be granted another visa, and this was said to involve inconsistency (see at [24]). The Court (Gageler CJ, Edelman and Jagot JJ) rejected this argument. Their Honours said (at [26]-[27]):

…Having already characterised the plaintiff’s custodial sentence for his offending as reflecting the view of the sentencing court that the offending was “very serious”, the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff’s visa even though the plaintiff’s conduct was not of the kind specified in para 8.5(2).

Nor is there any inconsistency between that evaluation and the delegate’s recognition that the plaintiff would be in the Australian community for so long as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future. Paragraph 8.5(2), in saying that “the Australian community would expect that the person should not be granted or continue to hold a visa”, must be understood in context. It is plain from the context that the “visa” being referred to in this sentence, in the case of a visa that has been subject to mandatory cancellation, is the visa that permitted the non-citizen to remain in Australia …

32 XKTK concerned a decision to cancel a visa under s 501BA(2). As in the present case, the Minister accepted that cancelling the appellant’s visa would not result in him being detained or removed from Australia but nevertheless found that cancellation would serve the purpose of protecting the community. The Minister’s reasons contained paragraphs (set out in the reasons of Wheelahan J at [43]) that were materially identical to those which we have set out at [12 ] above. It was submitted that these paragraphs rendered illogical the Minister’s allocation of weight to community protection and community expectations, because those elements of the reasoning were premised on the outcome of the decision being removal from the Australian community (see at [44]).

33 Stewart and Needham JJ saw similarity between the Minister’s reasoning and the reasoning of the delegate in Plaintiff S22 (at [111]). Having referred to the reasoning in Plaintiff S22 at 27, their Honours described that reasoning (at [113]) as equally applicable to the contentions in XKTK concerning both the expectations of the Australian community and the safety of the community. They explained this point as follows:

…This is because the critical reasoning at [27] is that there was no illogicality or “inconsistency” in cancelling a visa that granted the non-citizen the right to remain in Australia in circumstances where the non-citizen will still remain in Australia but on a visa that is designed to facilitate their removal when practicable. Also, the High Court reasoned (at [15]-[16]) that although the statement that the Minister would “separately consider the type of visa on which [the plaintiff] should reside” was incorrect in that the only “type” of visa that could be granted to the plaintiff after the delegate decided not to revoke the cancellation of the plaintiff’s TPV was the BVR, the reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” and that it was not to be assumed that the delegate misunderstood that the plaintiff could not be held in detention when the delegate elsewhere explained that they were aware that that would not occur.

Although the Minister’s reasons in the present case are open to the criticism that they do not explain how or why the considerations of the expectation of the Australian community and protection of the community support non-revocation in circumstances where the appellant would continue to reside in the community, it cannot be inferred that the Minister was unaware that that would be the result — that understanding was made explicit, albeit in another part of the reasons…

34 Wheelahan J, concurring in the result, said at [51]:

The Minister made no error in identifying considerations that favoured removal of the appellant from the Australian community, because that was the purpose of the exercise of the power. There is a significant misconception in the appellant’s case that is exposed by addressing the object of the power of cancellation, and the legal consequences of the Minister’s decision which the Minister identified. That misconception is that only detention or actual removal of the appellant was reasonably capable of being regarded by the Minister, within the terms of his reasons, as a measure of protection of the Australian community. That is not so. The Act advances its objects in different ways. As I have explained earlier, the Minister’s cancellation of the appellant’s visa in the national interest on character grounds ensured that the appellant was liable to be removed from Australia, even if removal was not reasonably practicable at the time of the decision. As I identified at [17] above, to render a person liable to removal is the purpose of the power of cancellation in the national interest on character grounds under s 501BA(2). Having regard to the purpose of s 501BA(2), it cannot be said that the Minister’s reasoning, which was directed to the circumstances and consequences of the appellant’s offending that provided the occasion for the exercise of the power, and to the protection of the Australian community and community expectations, was irrational, illogical, or unreasonable. If, as the Minister recognised, removal was not reasonably practicable at the time of the decision, then the terms of the Act directed the Minister and eligible non-citizens to other visas with different terms, and with protective conditions …

35 Two observations should be made about these authorities.

36 First, cases involving allegations of irrationality and unreasonableness involve an evaluative exercise which is necessarily fact-specific. Identifying similarities or differences between the facts of the instant case and an earlier case in which irrationality was or was not found will rarely (if ever) be sufficient to answer the question whether a decision is vitiated by irrationality (cf Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [41]-42). It is for this reason that we have described Plaintiff S22 and XKTK as not establishing binding principles of law that govern this case. The contest between the parties in the present case essentially boiled down to how the Minister’s reasons should be construed (in particular whether, bearing in mind what the Minister said at [74]-[75], the absence of an express explanation of why cancelling the respondent’s visa would assist in protecting the community at [49] should be taken to involve an assumption with no evident foundation). This is ultimately a factual question and not something to be settled by reference to authority. However, the close similarity between the way the Minister’s reasons were expressed in XKTK and in the present case means that it would be difficult to accept the respondent’s submissions without disagreeing with some aspect of the determinative reasoning in that case.

37 Secondly, the Court in Singh observed at [47] that, where reasons are given for the exercise of a power, the “intelligible justification” must at least ordinarily lie within those reasons. The view was expressed somewhat tentatively, but has since been treated as correct including at Full Court level (eg CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at 64). Singh involved the unreasonable exercise of a discretion. However, there is no reason why the same principle should not be applied in a case of alleged irrationality (it was applied by Wigney J in KFTJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 958 at [20]-[21] in assessing whether a state of satisfaction formed under s 501BA(2) was irrational). The basic principle governing both kinds of case is that public powers must be exercised “according to law, and not humour” (Sharp e v Wakefield [1891] AC 173 at 179 (Lord Halsbury LC)), which imposes requirements as to the reasoning as well as the result. This makes it essential for the Court to understand as best it can the decision-maker’s reasons for coming to a state of satisfaction and points to the irrelevance of matters that the decision-maker did not in fact consider. When the role of a statement of reasons provided in compliance with a statutory duty (in the light of Yusuf (above)) is also understood it becomes plain that, where such reasons are given, what is and is not discussed in those reasons must at least ordinarily be determinative of whether the decision-maker’s state of satisfaction had a rational basis.

38 For this reason, we have not taken up the invitation of senior counsel for the Minister to infer, based on certain parliamentary materials, that the Minister had any particular level of understanding of the provisions relating to the grant of visas (known as Bridging R visas or BVRs) to members of the NZYQ cohort or the specific conditions to which such visas were or could be made subject. Counsel referred in this connection to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at 18 (Viane), where it was held that the Minister was not required to say whether a finding was based on personal knowledge. However, Viane involved an express factual finding (as to circumstances in another country), made without express citation of evidence, from which inferences were then drawn. The present case involved a higher-level conclusion which must necessarily have been based on primary facts, without (so the respondent contended) any exposure of what those facts were.

39 Nor, on the other hand, have we found it necessary in this case (as the Full Court seems to have done in XKTK) to make our own analysis of the classes of visa that could potentially be granted to a non-citizen in the NZYQ cohort. It appears that the Minister’s reasons in XKTK were criticised for their reference to consideration of what “type” of visa might be granted to the appellant in that case (on the basis that the only possible visa was a BVR). In the present case, in short, the Minister expressed an understanding at [74] of his reasons that there was at least one class of visa that could be granted to the respondent, that such a visa could be made subject to conditions, and this was a matter he (the Minister) would consider subsequently. That understanding was not alleged to be infected by any legal error; and the point made in Singh at [47] indicates that we should not introduce further detail to which the Minister did not refer (such as the precise content of conditions that could be imposed on a BVR).

40 What followed from the understanding expressed by the Minister at [74] was that, if the respondent’s visa were cancelled, he would no longer hold a visa of that kind but would most likely be granted a visa of a different kind to which a range of conditions could be attached (and that the Minister himself would make that decision or at least exercise some control over it). This, combined with the observation that there were significant limitations on the classes of visa for which the respondent himself could apply (at [75]), was sufficient to make it rational for the Minister to consider that cancelling the respondent’s visa would be conducive to protecting the community.

41 For these reasons, the Minister’s ground of appeal is made out.

The notice of contention

42 The notice of contention alleges that the Minister’s decision was “unreasonable, illogical or irrational” because the Minister, having decided not to hear from the respondent, relied on findings concerning the extent of the respondent’s rehabilitation that were based on outdated material. The respondent referred in this connection to GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 (Bennett J) (GRCF), although illogicality seems to have been conceded in that case (see at [20]). The Minister did not submit that the decision in GRCF was wrong.

43 This point was not raised before the primary judge. However, the Minister did not oppose a grant of leave to raise the point in the appeal and we consider that such leave should be granted.

44 The Minister’s conclusion as to the protection of the community relied on an assessment of the risk posed by the respondent. A significant aspect of this assessment was respondent’s remorse and rehabilitation. At [42], the Minister accepted that the respondent had displayed some remorse. Turning to rehabilitation, the Minister said at [43]-[44]:

However, it is a matter of serious concern to me that there is no evidence to demonstrate that the [respondent] has undertaken a meaningful rehabilitative intervention directly related to sexual offending. A Corrective Services NSW psychologist stated that [the respondent] required rehabilitation directed specifically to his sexual offending – such as through completion of the Sex Offenders Program – however there is no evidence before me that he has completed or even started such a course. The AAT stated that the fact he has not completed his course was through no fault of his own. Whatever reason was attributed to [the respondent] not having completed a sex offenders course does not detract from the fact that he is an untreated sex offender.

There is also an absence of evidence of rehabilitation [the respondent] has undertaken related to alcohol and drug misuse. Although [the respondent] stated in his personal circumstances form that he has done drug and alcohol courses in jail, there is a lack of independent evidence before me to support that claim and how he has responded to completion of such courses. The AAT compiled a list of courses [the respondent] completed in jail, but most are educational, hospitality or workplace related and not rehabilitative courses.

45 The problem with this reasoning is that it relied on material that was before the Tribunal and no attempt had been made to obtain any updated information. The Tribunal’s decision was made on 19 May 2023, following a hearing that concluded earlier in that month. The Minister made his decision on 17 June 2024. The Minister’s reasons at [8] noted that he had chosen to proceed without giving the respondent an opportunity to be heard and the respondent had therefore “not had the opportunity to advance reasons why an adverse decision should not now be made”. There was no express acknowledgement of the absence of up-to-date information.

46 The short points that arise from [43]-[44] of the Minister’s reasons are as follows.

(a) The Minister evidently considered it significant that there was “no evidence before me that [the respondent] has completed or even started” a course of rehabilitation directed at sexual offending. The same point was made in respect of rehabilitation for drug and alcohol misuse. However, no inference could logically be drawn from an absence of this evidence in the absence of any process by which such evidence, if it existed, would be expected to come before the Minister.

(b) The Minister found in terms that the respondent “ is an untreated sex offender” (emphasis added). This finding was obviously an important one in the context of a risk assessment. It was evidently based on the respondent having been in that position at the time of the Tribunal decision (thirteen months earlier), together with the absence of any evidence of a change of position. But the Minister, not having caused any inquiry to be made about whether such evidence existed, had no rational basis to express any view as to the respondent’s current state of rehabilitation.

47 The Minister is, of course, empowered to make a decision under s 501BA(2) without taking any steps to provide the visa holder with an opportunity to be heard. However, if a significant time has elapsed since the decision proposed to be set aside, a decision not to invite any representations or further evidentiary material from the visa holder may have consequences for the findings that the Minister can properly make in considering whether the power should be exercised.

48 Here, it was open to the Minister to find that the respondent had taken no substantial steps towards rehabilitation up to the time of the Tribunal hearing (and to take the view that the reasons why that had happened were less important than the fact that it had happened). The Minister submitted that the impugned findings in the present case should be understood in that way. A historical finding of that kind could conceivably have had some relevance to the analysis of the national interest or the exercise of the Minister’s discretion. However, any consideration of the use to which such a finding might properly have been put would be speculative. The Minister in the present case was clearly expressing views about the respondent’s circumstances at the time of his decision. Those conclusions, as explained above, did not have a rational basis.

49 As noted earlier, it appears not to have been in issue in GRCF that one of the findings made by the Minister lacked a rational basis. The Minister’s decision in that case was sought to be defended on the basis that the impugned finding was not material.

50 In the light of Masi- Haini v Minister for Home Affairs [2023] FCAFC 126; 298 FCR 277 at [49]-52 and Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at 35(6), we doubt whether “materiality” (in the sense discussed in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506) is the right frame of reference in a case where irrationality is alleged. That is because, at least arguably, “irrational” is a characterisation that must be applied to the ultimate state of satisfaction and therefore has a (relatively stringent) requirement of materiality built into it. However, it is not necessary to pursue that question here. No argument was advanced to the effect that the impugned finding was not sufficiently central to the formation of the Minister’s state of satisfaction concerning the national interest to result in jurisdictional error. The finding as to a lack of rehabilitation was a significant element in the chain of reasoning leading to that state of satisfaction, and that state of satisfaction therefore cannot be said to have been “based on findings or inferences of fact supported by logical grounds”.

51 The notice of contention should therefore be upheld.

Disposition

52 The appeal must be dismissed, albeit for reasons different to those given by the primary judge.

53 Because the result of the appeal has turned on a point that was not raised before the primary judge, the Minister should not be ordered to pay the respondent’s costs of the proceeding below. We will set aside the costs order made by the primary judge but will not make any order as to the costs of the proceeding below. However, the Minister should pay the respondent’s costs of the appeal.

| I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry, Kennett and Shariff. |
Associate:

Dated: 13 April 2026

Top