Visa cancellation on character grounds dismissed, 27th Apr

Original Word Document (109.7 KB) Federal Court of Australia

WWHZ v Assistant Minister for Immigration [2026] FCA 523

| File number: | VID 1155 of 2025 |

| Judgment of: | ROFE J |

| Date of judgment: | 27 April 2026 |

| Catchwords: | MIGRATION – cancellation of visa on character grounds under s 501(3A) of the Migration Act 1958 (Cth) – where applicant convicted of serious family violence offences – where Administrative Review Tribunal revoked mandatory cancellation – where Assistant Minister exercised power under s 501BA(2) of the Act to set aside Tribunal decision and cancel the visa in national interest – where applicant is a member of “ NZYQ cohort” – where removal not reasonably practicable in foreseeable future – whether Assistant Minister misunderstood legal consequences of cancellation – whether reasoning illogical or legally unreasonable – whether Assistant Minister proceeded on false premise as to evidentiary material – whether Assistant Minister incorrectly asserted consideration of psychiatric report not before him – whether materiality established – held: application dismissed |

| Legislation: | Migration Act 195 8 (Cth)

Migration Regulations 1994 (Cth) |

| Cases cited: | CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

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

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

NZYQ v Minister for Immigration and Citizenship and Multicultural Affairs (2023) 280 CLR 137

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 426 ALR 587

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs (2025) 425 ALR 25

RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27

Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539 |

| Division: | General Division |

| Registry: | Victoria |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 81 |

| Date of last submissions: | 3 February 2026 |

| Date of hearing: | 17 February 2026 |

| Solicitor for the Applicant: | L Bayly of Victorian Legal Aid |

| Counsel for the Respondent: | A F Solomon-Bridge |

| Solicitor for the Respondent: | Mills Oakley |
ORDERS

| VID 1155 of 2025 |

| BETWEEN: | WWHZ

Applicant | |
| AND: | ASSISTANT MINISTER FOR IMMIGRATION

Respondent | |

| order made by: | ROFE J |
| DATE OF ORDER: | 27 April 2026 |
THE COURT ORDERS THAT:

1. The amended originating application for review of a migration decision dated 20 January 2026 be dismissed.

2. The applicant pay the respondent’s costs of the proceeding, to be taxed in absence of an agreement.

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

REASONS FOR JUDGMENT

ROFE J:

1. Introduction and background

1 The applicant is a 52-year-old stateless Palestinian born in Iraq and who is a former resident of Iraq and Syria, arrived in Australia in 2018 aged 45. He seeks to set aside a decision of the Assistant Minister for Immigration to cancel his Refugee (Class XB Subclass 200) visa.

2 In 2023, the applicant was convicted by the Supreme Court of Victoria of what was described as “very serious family violence offences”, and for which he was sentenced to four years and three months’ imprisonment. The offending was triggered by the applicant’s wife’s refusal to have sex with him and involved violence and serious threats, including threats of death and arson. The offending escalated when the applicant threatened to kill the whole family and to run them down, culminating with him driving his car through the front window of the house where his wife and her mother were standing, narrowly missing the wife’s brother and father. The applicant’s children witnessed aspects of the offending and were inside the house. The applicant is subject to a Domestic Violence Order in force until 2027 and the protected persons include his wife, his four minor children and his in-laws.

3 On 9 August 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had a “substantial criminal record” within the meaning of s 501(6)(a) and was serving a sentence of imprisonment on a full-time basis. On 24 October 2024, a delegate of the Minister refused to revoke the cancellation.

4 Following the decision of the High Court of Australia in N ZY Q v Minister for Immigration and Citizenship and Multicultural Affairs (2023) 280 CLR 137 published on 28 November 2023, the applicant was released from immigration detention on 3 December 2024 as the holder of a Bridging R (Removing Pending) (Subclass 070) visa (BVR), subject to various conditions. It was not in dispute that the applicant was a member of the “ NZYQ cohort”.

5 On 16 January 2025, the Administrative Review Tribunal decided to revoke the mandatory cancellation (the Tribunal D ecision). The applicant’s visa was thereby reinstated.

6 A Ministerial Submission was sent to the Minister with attachments, for him to consider whether to cancel the applicant’s visa under s 501BA of the Act.

7 On 24 July 2025, a Departmental Liaison Officer with the Minister’s office wrote to the Department advising that the Minister had indicated his intention to consider cancellation of the applicant’s visa without natural justice and advising of two alternative times for signing.

8 On 30 July 2025, the Minister personally made a decision under s 501BA to set aside the Tribunal Decision and cancelled the applicant’s visa (the Minister’s Decision or MD). On that same day, after receiving notification from the Minister of the proposed cancellation, the delegate granted the applicant a further BVR subject to certain conditions, the delegate being satisfied that there was no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future: rr 2.20(18) and 2.25AB(1) of the Migration Regulations 1994 (Cth).

9 On 1 September 2025, the applicant instituted proceedings in this Court to set aside the Minister’s Decision. A hearing in this matter took place on 17 February 2026, following which I reserved my decision.

10 On 16 April 2026, Mills Oakley, the firm on record for the Minister, contacted my chambers by email wishing to draw the Court’s attention to the recent decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45, delivered on 13 April 2026, as a relevant post-hearing decision. I have had regard to that decision in considering the present matter.

1. The Minister’s Decision

11 At the commencement of the Minister’s Decision, the Minister states that “[i]n making my decision, I have had regard to the summary of material provided to me by the Department”. That material included the Submission and the attachments to the Submission as described therein.

12 The Minister’s Decision disclosed that the Minister had exercised the power to cancel the applicant’s visa because:

(a) he was satisfied that the applicant did not pass the character test (at MD [11]);

(b) he was satisfied that the cancellation was in the national interest, which enlivened a discretionary power to cancel the visa; and

(c) he thought that that power should be exercised by cancelling the applicant’s visa (at MD [77], [127]).

13 The Minister assessed the national interest from two perspectives:

(a) the protection of the community, which encompassed consideration of the seriousness of the criminal conduct, impact on victims, and risk to the Australian community; and

(b) the expectations of the Australian community.

14 Having concluded that the cancellation of the applicant’s visa was in the national interest at MD [77], the Minister then proceeded to consider how the discretion thus arising should be exercised by reference to a number of factors from MD [78] onwards, including the best interests of minor children, ties to Australia, legal consequences of the decision and the impediments that the applicant would face if he were returned to Palestine or to Iraq, noting that these factors weighed against cancellation of the applicant’s visa.

15 At MD [115], the Minister noted that the applicant previously held a BVR and may be entitled to be considered for a further grant of a BVR.

16 However, the Minister noted at MD [129] that he had given the highest priority to the safety of the Australian community and the need to protect its safety. Referring to the applicant’s serious family violence offences, community expectation about those who commit such offences, and the need to protect the Australian community from risks of harm, the Minister concluded at MD [137] that the considerations against visa cancellation were outweighed by the serious national interest considerations in this case. At MD [138], the Minister gave effect to his conclusion and decided to exercise his discretion to set aside the Tribunal decision and to cancel the applicant’s visa under s 501BA of the Act.

1. Evidence

17 The following evidence was tendered at the hearing in this matter on 17 February 2026:

(a) an affidavit of Malek Kazimi, a solicitor at Victorian Legal Aid, made 21 January 2026, together with exhibits MK2 and MK7; and

(b) an affidavit of Vincent Wai-Han Tang, an officer in the Department of Home Affairs, made 3 February 2026, together with exhibit VWHT-01.

18 Exhibit MK2 comprises the decision record of a delegate of the Minister for the grant of a BVR dated 30 July 2025, and Exhibit MK7 consists of a copy of the psychiatric report of Dr Nina Zimmerman dated 22 December 2024, which was before the Tribunal.

1. Legal Framework

19 The starting point in examining whether the applicant has made out his claims is the text, context, and object of the relevant provisions of the Act: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539 at 13. XKTK concerned an appeal by a member of the NZYQ cohort challenging a decision made by the Minister under s 501BA to revoke his visa. There, Wheelahan J examined the text, context and object of the relevant provisions of the Act. I adopt his Honour’s explanation of the legislative framework in which s 501BA operates, as set out at [13]–[31]. In particular, I note the following principles extracted by his Honour in that passage:

[14]    The object of the Migration Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). […]

[15]    Non-citizens within Australia, such as the appellant, are vulnerable to exclusion or deportation: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 29 (Brennan, Deane and Dawson JJ). […]

[17]    The purpose of the exercise of the Minister’s power under these provisions is to ensure that a person who fails the character test is liable to be removed from Australia: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 41. In furtherance of that purpose the cancellation or cessation of a visa operates on the status of a person and is a necessary step towards achieving removal: Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [47]-48.

[18]    It is wrong to assume, as the appellant’s submissions seem to do, that within the scheme of the Act cancellation of a person’s visa as a necessary step towards removal can only lawfully occur when removal is reasonably practicable, either at the time of cancellation or in the reasonably foreseeable future. There are no express limitations to this effect, and no such limitation is to be implied. The purpose of cancellation may be met even though removal from Australia may not be reasonably practicable at the time the decision to cancel a visa is made. The Act and the Migration Regulations 1994 (Cth) contemplate and accommodate a situation where removal from Australia might not be reasonably practicable at the time a visa is cancelled, or in the reasonably foreseeable future, by providing for detention within the constitutional limits referred to in NZYQ until removal is effected. If detention is not authorised, the Act and regulations provide for bridging visas […]

[21]    […] The Minister also has power under the regulations to issue a BVR without an application being made if the Minister is satisfied that removal from Australia is not reasonably practicable: reg 2.25AA(2); cf, s 45 of the Act. A BVR is a class of bridging visa which may be granted to eligible non-citizens under s 73 of the Act. For the purpose of the definition of “eligible non-citizen” in s 72 of the Act, reg 2.20(18) prescribes “a non-citizen if there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future”. It is in the nature of a bridging visa that it is effective during a specified period, or until a specified event happens: s 73.

[…]

[23]    Therefore, a BVR would permit the appellant to remain in Australia, in effect, until it became reasonably practicable to remove him, and from the Minister’s perspective, a BVR would cease immediately upon the Minister giving notice that he is satisfied that removal is reasonably practicable.

1. Grounds of review

20 The applicant relies on an amended originating application for review of a migration decision dated 20 January 2026 which raised four grounds of review. At the hearing, Mr Bayly, solicitor advocate for the applicant, noted that the applicant no longer pressed ground 2, and as such the remaining three grounds of review are:

(a) Ground 1: The cancellation decision is infected by jurisdictional error because the respondent failed to consider the legal consequences of the decision, proceeded on a misunderstanding of those consequences, and/or reasoned in a way that was legally unreasonable;

(b) Ground 3: The cancellation decision is infected by jurisdictional error because the respondent’s state of satisfaction that cancellation of the applicant’s visa was in the national interest was formed in a way that was irrational, illogical and/or legally unreasonable; and

(c) Ground 4: The cancellation decision is infected by jurisdictional error because the respondent reasoned in a way that was irrational, illogical and/or legally unreasonable, by finding that he had considered evidentiary material that was not before him.

21 Central to the applicant’s challenge to the Minister’s Decision is the fact that the applicant is a member of the NZYQ cohort. The High Court in NZYQ held that it was unlawful to indefinitely detain an unlawful non-citizen in respect of whom there was no prospect of removal from Australia becoming practicable in the reasonably foreseeable future. In that case, the High Court observed that “[r]elease from unlawful detention is not to be equated with a grant of a right to remain in Australia”, and “[u]nless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198”: at 72.

22 The effect of NZYQ is that even without a visa the applicant cannot be held in immigration detention for constitutional reasons. Each of the applicant’s grounds of review are predicated upon the Minister’s alleged failure to recognise that the applicant was a member of the N ZYQ cohort and could not in the reasonably foreseeable future be deported. Thus, whilst s 189 of the Act appears to authorise the detention of the applicant as an unlawful non-citizen, NZYQ establishes that its operation is currently invalid in relation to him. The applicant therefore remains at large in the community and there is no prospect that the cancellation of his visa will result in him being detained in immigration detention.

23 The fact that the applicant was a member of the NZYQ cohort was made clear in the Submission which advised at the top of the front page in italics above the options for the Minister to consider:

In the event the visa is cancelled, [the applicant] will be NZYQ-affected and unable to be taken into immigration detention. Should the Assistant Minister be minded to cancel the visa, please notify the Department of Home Affairs in advance so appropriate arrangements can be made, if required, and consider granting a Bridging R (Subclass 070) (Bridging Removal Pending) visa with appropriate community protection conditions.

24 The Submission repeated the advice, immediately above the signing clause on the second page:

[…] if you decide to cancel [the applicant’s] visa, they may be affected by the NZYQ High Court decision and as a result, a delegate may consider granting them a Bridging R (subclass 070) visa (BVR).

25 The body of the Submission at [20] referred expressly to the applicant as being “ NZYQ affected” and the consequence that if his visa was cancelled, the applicant would remain in the community as there was no real prospect of his removal from Australia being practical in the reasonably foreseeable future.

5.1 Ground 1: Legal consequences of the decision

26 There were two limbs to the applicant’s challenge under his first ground of review:

(a) the Minister failed to understand that the applicant could not be detained at all, regardless of the Minister’s Decision; and

(b) the Minister misunderstood the law by wrongly assuming that any future protection visa application by the applicant would include claims to fear harm in Palestine.

5.1.1 Ground 1(a)

27 As developed in oral argument, the first limb turned on two matters. The first being the confusing and inconsistent nature of the Submission. The second being the absence of any express consideration in the Minister’s Decision that confirms a correct understanding that the applicant would not be detained.

28 The following paragraphs from the Submission were the focus of the applicant’s submissions:

[18]    A decision to set aside the decision of the ART and cancel [the applicant’s] visa will result in him becoming an unlawful non-citizen, liable for immigration detention under s189 of the Act. Following such a decision, the Department of Home Affairs will give [the applicant] notice of your decision and take him into immigration detention. Once detained, unless a new visa is granted, [the applicant] will be liable to removal from Australia as soon as reasonably practicable, and in the meantime, liable to detention under s 1 89, provided that removal is practicable in the reasonably foreseeable future, or until granted a visa. If you do not cancel [the applicant’s] visa he will remain in the community.

[19] If you decide to set aside the decision of the ART and cancel [the applicant’s] visa, he will remain in the community and, it would then be necessary to consider further steps, which may include granting a Bridging R (Subclass 070) (Bridging Removal Pending) (BVR) visa to him.

[20]    [The applicant] is NZYQ affected. On 3 December 2024, whilst awaiting the outcome of the ART review, he was released from immigration detention on a Bridging (Removal Pending) (subclass 070) visa Attachment E. Following the High Court ’ s decision in NZYQ, an unlawful non-citizen cannot be taken into detention if there is no real prospect of their removal from Australia being practicable in the reasonably foreseeable future. The practical effect of this is that the non-citizen will remain in the community on Bridging (Removal Pending) (subclass 070) visa.

[21]    Accordingly, should you decline to consider whether [the applicant] be granted a Bridging R (Bridging Removal Pending) (subclass 070) visa, or another type of visa, and he is not granted a visa, he would be detained under s 1 89 of the Act and would remain in detention indefinitely in circumstances where s 1 97(3) prevents his removal to Palestine or Iraq, the latter being his country of birth, and where no third country has been identified to effect his removal. In accordance with NZYQ, this ongoing indefinite detention would be unlawful.

(Emphasis added)

29 The applicant accepts that [20] of the Submission is an accurate generic statement about the effect of NZYQ. The applicant further notes that as there is no s 197(3) in the Act, and therefore the reference to s 197(3) in [21] must be a reference to s 197 C (3).

30 The Minister was required to have regard to the “…direct and immediate statutorily prescribed consequences of the decision in contemplation”: Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at 84. The applicant accepted that this requirement may not encompassed the practical consequences of a discretionary exercise of executive power—such as the grant of a further BVR after the Minister’s Decision, but it did include the operation of ss 189, 196 and 198 of the Act and the constitutional limitations on executive detention set out in NZYQ.

31 The applicant submits that the above paragraphs from the Submission are internally inconsistent, incoherent and objectively confusing. At times, the Submission purports that the applicant will be detained if the Tribunal Decision is set aside and the visa cancelled; elsewhere, the Submission notes that as part of the NZYQ cohort, the applicant will not be detained regardless of the Minister’s Decision. The applicant further submits that the inconsistency and lack of clarity in the Submission prevented the Minister from having a proper understanding of the legal consequences of his decision in the sense described in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 and subsequent authorities, thereby causing it to be unreasonable, illogical, or irrational reasoning.

32 The applicant contends that parts of the Minister’s reasoning appeared to be based on the applicant being detained if his visa was cancelled, which, as an NZYQ cohort member, was not a prospect. For example, Dr Zimmerman considered that the applicant’s prospects of reoffending were lessened if certain stressors were removed by way of him being detained. In the context of considering the risk the applicant posed to the community, the Minister observed at MD [66], “…I have given weight to Dr Zimmerman’s opinion that the reduction of stressors in his life will reduce his risk of reoffending…”. The stressors to which Dr Zimmerman referred would only be reduced if the applicant were detained.

33 Similarly, the applicant submits that the following conclusion made by the Minister at MD [135] was premised on the imminent detention of the applicant:

I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further criminal serious conduct by [the applicant]. The Australian community should not tolerate any risk of further harm.

34 The applicant submits that the Minister’s reasoning was unreasonable, illogical, or irrational because the weight that the Minister placed on community protection and community expectations was necessarily premised upon the outcome of the decision being the applicant’s removal from the Australian community. The applicant contends that the Minister never explained how, in light of the fact that he, as a member of the NZYQ cohort, would continue to reside in Australia, the cancellation of his visa would promote community protection or satisfy community expectations.

35 The applicant maintains that the Minister’s Decision failed to acknowledge his membership of the NZYQ cohort. However, it can be inferred from the express reference to NZYQ on the front page of the Submissions, and from the intradepartmental correspondence leading up to the cancellation of the applicant’s visa, that the Minister was aware of the NZYQ decision, of the fact that the applicant was a member of the NZYQ cohort, and that as a result, consequent upon the cancellation of his visa, there was no real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future.

36 At MD [110], the Minister noted that he was aware that, under s 198, unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime, they are liable to detention under s 189 “…provided that removal is practicable in the reasonably foreseeable future…”. That latter language being reminiscent of that used in NZYQ, and of reg 2.20(18) of the Regulations. Moreover, the Minister noted at MD [115] that the applicant had previously held a BVR and may be entitled to a further grant of a BVR—indicating an awareness that the applicant was not going to be detained.

37 Being a member of the NZYQ cohort does not grant the applicant a right to remain in Australia. In the event that his visa is cancelled, the applicant remains in Australia only until such time that a state of facts comes to exist to give rise to a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. The fact that, at the time of the Minister’s consideration of whether to cancel the applicant’s visa, the timing of any ultimate removal was unknown does not render the Minister’s consideration of the national interest, or the exercise of his discretion, otiose.

38 The purpose of the exercise of the Minister’s power under s 501 of the Act is to ensure that a person who fails the character test is liable to be removed from Australia. In furtherance of that purpose, the cancellation or cessation of a visa operates on the status of a person and is a necessary step towards achieving removal: Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [47]–48. The context for the Minister’s considerations was that with his visa cancelled, the applicant had no right to remain in Australia and remained on a pathway to removal according to the scheme of the Act. Notwithstanding that the applicant’s removal might not be presently foreseeable, the cancellation of his visa was a necessary step towards the ultimate removal of the applicant. The Act and the R egulations contemplate and accommodate a situation where removal from Australia might not be reasonably practicable at the time a visa is cancelled, including by providing for bridging visas if detention is not authorised. In that statutory context, it was appropriate for the Minister’s considerations to proceed on the basis of the applicant’s ultimate removal from Australia, without further explanation.

39 There were two parts to the Minister’s Decision for reaching the conclusion that it was in the national interest to exercise the power under s 501BA of the Act to cancel the applicant’s visa. Both related to the applicant’s family violence offences which led to the applicant failing to pass the character test.

40 First, the Minister found the applicant’s conduct to be very serious, and that his family violence offending had the potential to cause serious physical harm, including death, psychological injury and/or financial harm to members of the Australian community, if repeated. Should the applicant engage in similar conduct again, the Minister considered that the harm that would be caused would be so serious that any risk that it could be repeated was unacceptable. Thus, the Minister considered that the need to protect the Australian community from criminal or other serious conduct weighted heavily in support of cancellation in this case in the national interest.

41 The second part was that cancellation of the applicant’s visa was appropriate because where a non-citizen has engaged in serious criminal conduct, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, would expect the Government to not allow the non-citizen to remain in Australia, and that this weighed significantly in favour of cancellation. That norm is unchanged by the applicant’s membership of the NZYQ cohort.

42 The Minister then turned to the legal consequences of his decision to cancel the applicant’s visa. In the section of the reasons entitled “[l]egal consequences of the decision”, the Minister set out the applicant’s history of displacement, noting that his displacement from Iraq and Syria “…indicates a potential for Australia’s international non-refoulement obligations to be engaged…”, and that “[i]t is open to [him] to make an application for a Protection visa”. The reasons noted that during the processing of a protection application, the applicant’s claims regarding Australia’s non-refoulement obligations would be fully assessed. The reasons continued:

[110]    I am aware that under s198 unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention under s189 provided that removal is practicable in the reasonably foreseeable future, noting also that s197C(l) provides that, for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.

[111]    However s197C(3) provides that s198 does not require or authorise removal of a person to a country in relation to which a ‘protection finding’ has been made in the course of considering a protection visa application by the person, except in the circumstances set out in s197C(3)(c).

43 The applicant submits that the recognition at MD [110] that detention under s 198 was subject to a generic limitation, namely “…that removal is practicable in the reasonably foreseeable future…”, said nothing of how this applied to this particular applicant. Unlike the reasons in XKTK for example, there was no express acknowledgement by the Minister that there was no prospect of the applicant being removed in the foreseeable future: see XKTK at [40]–41.

44 The applicant’s claim that the Minister’s Decisions was unreasonable, illogical, or irrational to the high threshold that is required in order to demonstrate jurisdictional error must be rejected. It is axiomatic that reasons must be read as a whole, and not with an eye astute to discern error: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at 38; Plaintiff S22 /2025 v Minister for Immigration and Multicultural Affairs (2025) 425 ALR 25 at 16. When the Minister’s Decision is read in that manner and with the object of the power that was being exercised in mind, it is clear that the Minister understood that, in the circumstances that applied to the applicant, imminent removal was not practicable, and that upon cancellation of the visa the applicant would not be taken into detention.

45 As Wheelahan J observed in XKTK at [18], it is wrong to assume that cancellation of a visa as a necessary step to removal can only occur when removal is reasonably practicable. The Act contains no such express limitation. The purpose of cancellation may be met even though removal from Australia may not be reasonably practicable at the time the decision to cancel a visa is made.

46 It is important to recall that membership of the NZYQ cohort does not entitle the applicant to permanently reside in Australia. The applicant remains liable to be removed, if in the future a state of facts comes to exist giving rise to a real prospect of the plaintiff’s removal from Australia becoming practicable. For example, if it became possible in the future to remove the applicant to a third-party country. Whilst the removal of the applicant is not imminent, he remains on the removal pathway provided by the Act and the Regulations.

5.1.2 Ground 1(b)

47 The applicant submits that the Minister’s comments in relation to the applicant’s ability t to make a protection visa application demonstrate that he misunderstood the law by wrongly assuming that any future protection visa application by the applicant would include claims to fear harm in Palestine, a country to which he had no right of return. Albeit the applicant is of Palestinian descent, he is not a Palestinian national and has only resided in Iraq and then Syria. The Act does not provide for consideration of possible harm in a country of which a protection visa applicant is neither a national nor a former habitual resident. Thus, consideration of a protection visa based on fear of significant harm if returned to Palestine was an empty proposition.

48 The Minister was under no misapprehension that the applicant had lived in Palestine. Rather, the reasons refer to the applicant’s claims to be of Palestinian descent, and his claim to Palestinian citizenship, noting that he was born in Iraq and lived in Syria prior to migrating to Australia. At MD [124], the Minister expressly prefaced his findings as to the hardship that the applicant would face if removed to Palestine with the qualifier that “[i]n the event that it becomes possible for [the applicant] to be removed to Palestinian (sic) due to his claimed Palestinian background…”.

49 The applicant overlooks that the discussion in the reasons of the potential protection visa application, and the impediments if removed, was not restricted to return to Palestine, but also included Iraq. At MD [117], the Minister notes that:

Although [the applicant’s] claims of fearing harm in Palestine and Iraq are yet to be formally assessed pending any application that he may make in the future, I have taken into account the information before me regarding the impediments to his return to Palestine or Iraq.

Attachments B, D and E.

(Emphasis in bold and underline in original.) (Emphasis in italics added.)

50 In the Personal Circumstances Form which comprised Attachment D to the Submissions, the applicant has nominated his current citizenship as “Palestinian” which likely explains the inclusion of Palestine in the Minister’s considerations.

51 I reject ground 1(b). The Minister’s references to Palestine were the direct consequence of the applicant claiming Palestinian citizenship (or descent) and were expressed to be contingent upon it becoming possible for the applicant to be removed to Palestine. Further, the Minister also considered impediments if the applicant were to be returned to Iraq.

52 Accordingly, the first ground of review fails.

5.2 Ground 3: Minister’s decision not unreasonable or illogical

53 By this third ground of review, the applicant contends that the reasoning supporting the Minister’s conclusion that cancellation of the applicant’s visa was for the protection of the community was irrational illogical or legally unreasonable. At the heart of the applicant’s claim is that it was irrational or illogical for the Minister to reason that the risk that the applicant posed to the community weighed heavily in support of cancellation of his visa when following cancellation of his visa the applicant would not be detained and would remain in the community.

54 The applicant submits that the Minister never explained how, in light of the fact that the applicant would continue to reside in Australia (by reason of being in the NZYQ cohort), cancellation of his visa would promote community protection or expectations. Rather than explaining why this protective effect arose, the Minister’s Decision merely assumes that there was such a protective effect. An example of this reasoning is purportedly represented by the Minister’s statement at MD [68]:

Considering the nature and seriousness of [the applicant’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 applicant] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancel[l]ation, in this case, in the national interest.

55 The ground of legal unreasonableness is an established category of jurisdictional error. The threshold for establishing legal unreasonableness is high and it is not a finding lightly made. It will be made out where the decision is so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could reach: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]–34.

56 As Steward J observed in Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 426 ALR 587 at [27]:

[…] The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not — in any way — make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

57 In assessing the unreasonableness or illogicality of the Minister’s decision, it is necessary to bear in mind the decisional freedom afforded to the Minister in determining the weight to be attached to various considerations which are considered relevant to the national interest, or in the exercise of his discretion. In CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199, the Full Court of this Court observed that “[t]he Minister’s determination not to give weight (either for or against visa cancellation) to the legal consequences of the Decision may not be unreasonable, illogical or irrational, even if others may regard the determination to be harsh”: at 26, citing RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at 36.

58 There are two elements to the applicant’s contention. First is the general absence of a logical connection between protection of the community and cancellation, given that the applicant would remain in the community following cancellation. There is no logical path of reasoning disclosed, for example raising the possibility of deportation of a BVR holder under future third country reception arrangements. Secondly, it was irrational or illogical for the Minister to conclude that the risk that the applicant posed to the community weighed in favour of cancellation of his visa when the applicant would remain in the community.

59 The applicant submits that the Minister’s reliance on Dr Zimmerman’s opinion (as set out in Ground 1 above) only makes sense if the applicant was going to be imminently detained.

60 The task of the Court requires an assessment of the quality of the Minister’s exercise of power by reference to the source of the power in order to evaluate whether, as the applicant claims, the reasons given by the Minister did not support a lawful exercise of power having regard to the scope, purpose, and objects of the statutory source of the power: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [78]–80.

61 The first thread was that the applicant had been convicted of an offence which involved the serious family violence, which the Minister stated was viewed very seriously by the Australian community. The Minister considered that family violence, including physical harm and conduct which is threatening, controlling, and causes a family member to be fearful is unacceptable and contrary to community values. The Minister considered that there remained a real likelihood, albeit low, but not negligible, that the applicant would reoffend. The nature of the offending informed the Minister’s view that repetition of the offending had the potential to cause harm so serious, that any risk of repetition was unacceptable, and that this weighed heavily in support of cancellation in the interests of the Australian community.

62 The applicant’s claim that the Minister’s Decision was unreasonable, illogical, or irrational to the high threshold that is required in order to demonstrate jurisdictional error must be rejected. When the Minister’s Decision is read fairly as a whole and against the object of the power that was being exercised, it is clear that the Minister understood that, in the circumstances that then existed, removal was not practicable, that upon cancellation of the visa the applicant would not be taken into detention, and that some other visa that would be subject to conditions would be issued.

63 The Minister made no error in identifying considerations that favoured removal of the applicant from the Australian community, because that was the purpose of the exercise of the power. There is a significant misconception in the applicant’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 applicant was reasonably capable of being regarded by the Minister, within the terms of his reasons, as a measure of protection of the Australian community. Further, as I noted above, the applicant’s contention fails to take proper account of the legal and practical consequences which follow from visa cancellation, even where detention or removal does not occur in the immediate or foreseeable future. Cancellation alters the applicant’s status under the Act, renders him liable to removal, and exposes any continued presence in Australia to a different statutory framework, including future visa decisions subject to conditions and restrictions that take account of his criminal history. The applicant’s contention impermissibly treats immediate removal as a necessary condition of community protection, a requirement not found in the legislation or its operation as a whole: see SSVJ at [24]–41.

64 Thus, the third ground of review also fails.

5.3 Ground 4: Falsely asserted consideration of evidentiary material

65 Finally, by his fourth ground of review, the applicant contends that the Minister’s decision is affected by jurisdictional error because the Minister proceeded on the basis that he had considered evidentiary material that was not before him. In particular, the applicant relies on MD [44], which relevantly stated the following:

I have considered the medical evidence submitted to the Tribunal by Dr Zimmerman in the psychiatric report dated 22 December 2024 confirming [the applicant’s] diagnoses of PTSD and depression Attachment E.

(Emphasis in original.)

66 The thrust of this ground is that Dr Zimmerman’s report itself was not before the Minister at the time of the decision and that only the Tribunal’s summary of that report formed part of the materials provided to him.

67 In support of this ground, the applicant relies on the following observations of Charlesworth J in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299 at [50]:

Considered in the proper statutory context, I consider the illogicality at [11] constitutes a breach of a condition affecting the exercise of the power, namely that the Minister conduct the fact finding task attending the exercise of the power in a manner that is logical and rational. It was nonsensical for the Minister to conclude that the Tribunal information bore on the matters he determined to be relevant, and to state that the material had been considered, when the true state of affairs was that the Tribunal information was not before him and had not been considered at all. I would arrive at that conclusion irrespective of whether the assertion was knowingly false.

(Emphasis added.)

68 The applicant submits that the Minister’s express reference to having “considered the medical evidence submitted to the Tribunal by Dr Zimmerman” discloses a material misunderstanding as to the evidentiary basis of the decision. It is argued that the Minister did not merely rely on a secondary summary of the report, but asserted that he had considered the report itself, when in fact that report was not included in the materials before him.

69 By way of example, the applicant refers to the following passages from Dr Zimmerman’s report at [151]–[152]:

I believe that [the applicant] has post-traumatic stress disorder, currently in remission. I believe that he is at significant risk of relapse should he be exposed to high levels of stress or reminders of the initial trauma.

[The applicant] has a history of persistent low mood, anxiety, suicidal thoughts and is appropriately diagnosed with depression. This has been treated with antidepressants in the past but he is currently off treatment. I believe that he is in partial remission with some persisting flatness in presentation, agitation at times and tearfulness. I believe that he is at risk of a worsening of symptoms in the context of increased stress.

70 The applicant further draws attention to the following remarks of Dr Zimmerman at [176]:

[The applicant] was precipitously released to the community without warning. There are no professional supports in place – even his Medicare card has expired, resulting in him not being able to attend his GP.

71 The applicant submits that this constitutes a false premise going to the exercise of the power under s 501BA of the Act.

72 The applicant further submits that the error was material. He argues that, had the Minister actually considered Dr Zimmerman’s report, aspects of the reasoning concerning the applicant’s mental health, the assessment of risk, and the weight attributed to the reduction of stressors might have been different. In those circumstances, the applicant submits that there was a realistic possibility that the decision could have been different, such that the asserted consideration of non‑existent material amounts to jurisdictional error.

73 I consider that this ground is also not made out.

74 The applicant’s contention proceeds on the premise that the Minister misunderstood the evidentiary record by treating Dr Zimmerman’s report as material that was before him, when in fact only the Tribunal’s summary of that report was included in the materials. That premise should not be accepted.

75 Read fairly and as a whole, the Minister’s Decision does not assert that the full psychiatric report of Dr Zimmerman was before him. The reference at MD [44] to having “considered the medical evidence submitted to the Tribunal by Dr Zimmerman” is properly understood as a reference to the Tribunal Decision, which summarised and discussed that evidence and which formed part of the material before the Minister. It is plain that the Minister repeatedly cross-referred to the Tribunal Decision as contained in Attachment E to the Submission, and therefore the impugned statement must be read in that context.

76 The Minister properly points out that Attachment 2 to the Ministerial Submission comprised a very short index of relevant material, and the Minister had been advised in the Submission that the draft statement of reasons had been prepared on the basis of those documents.

77 That indexed material itself comprised only 78 pages. It is apparent from the most cursory advertence to the relevant material, or its index, that Dr Zimmerman’s report is not a part of those materials. On the other hand, the Tribunal Decision (which comprised some 41 pages of the indexed material), contained lengthy discussion of Dr Zimmerman’s report and oral evidence. Where the Minister adverted in his reasons to Dr Zimmerman’s evidence before the Tribunal, it was always to that evidence as it had been recorded or summarised in the Tribunal Decision. Moreover, the source which the Minister cross-referenced for his statement at MD [44] was “Attachment E”, being the Tribunal Decision.

78 In those circumstances, the Minister did not proceed on a false premise as to the material before him. Nor is this a case in which the Minister purported to consider material that was not before him in the sense contemplated in LJTZ. Rather, the substance of Dr Zimmerman’s opinions was before the Minister through the Tribunal’s summary and findings.

79 Further, even if the applicant’s construction of MD [44] were accepted, the applicant has not established materiality. The relevant opinions of Dr Zimmerman, including those relied upon by the applicant, were captured in the Tribunal Decision. The applicant has not demonstrated a realistic possibility that the outcome would have been different had the report itself been before the Minister.

80 Accordingly, Ground 4 should be rejected.

1. Conclusion

81 The application should be dismissed with costs.

| I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. |
Associate:

Dated: 27 April 2026