BFBZ v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FCA 234
•21 March 2025
FEDERAL COURT OF AUSTRALIA
BFBZ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 234
File number(s): NSD 1086 of 2024 Judgment of: SHARIFF J Date of judgment: 21 March 2025 Catchwords: MIGRATION – judicial review of decision of Minister – where Minister exercised personal power conferred by s 501BA of the Migration Act 1958 (Cth) to set aside decision of Administrative Appeals Tribunal – where Minister found visa cancellation to be in the national interest – whether Minister’s decision affected by legal unreasonableness – no error established – application dismissed with costs Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a), 37AI, 37AJ
Migration Act 1958 (Cth) ss 501(3A), 501(6)(a), 501(7)(c), 501BA
Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1
Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12
Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150
LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162
Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28
Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270
Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 49 Date of hearing: 5 February 2025 Counsel for the Applicant Mr A Chowdhury Counsel for the Respondent Mr G Johnson Solicitors for the Respondent Sparke Helmore Lawyers
ORDERS
NSD 1086 of 2024 BETWEEN: BFBZ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
SHARIFF J
DATE OF ORDER:
21 MARCH 2025
THE COURT ORDERS THAT:
1.The further amended originating application filed on 6 February 2025 be dismissed.
2.The applicant is to pay the respondent’s costs as agreed or taxed.
3.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the FCAAct), and on the ground specified in s 37AG(1)(a) of the FCA Act:
(a)the applicant be assigned the pseudonym ‘BFBZ’; and
(b)the Court file in these proceedings may not be accessed by third parties without leave of the Court,
for a period of 50 years commencing from the date of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SHARIFF J:
INTRODUCTION
This is an application for judicial review of a decision made by the respondent (the Minister) under s 501BA of the Migration Act 1958 (Cth) (the MigrationAct).
The background may be shortly stated. The applicant is a citizen of New Zealand who arrived and commenced residing in Australia with her family in April 2011 at the age of 15. Between 2019 to 2021, the applicant was convicted of various drug, trespass and theft related offences. On 20 August 2021, the applicant was convicted of offences relating to her being in company with her then partner (JP) during a robbery and impersonating a police officer. The specific offences were described as “In company rob while armed with dangerous weapon-SI” and “Impersonate police officer and exercise powers/functions-T1”. The applicant was sentenced to 5 years’ imprisonment in aggregate with a non-parole period of 2 years.
On 29 September 2021, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act (the Cancellation Decision). At the time of the Cancellation Decision, the applicant held a Class TY Subclass 444 Special Category (Temporary) visa. On 30 August 2023, a delegate of the Minister decided not to revoke the Cancellation Decision. On 23 November 2023, the Administrative Appeals Tribunal (the Tribunal) revoked the Cancellation Decision for reasons that were later published on 23 April 2024.
On 21 June 2024, the Minister set aside the Tribunal’s decision and cancelled the applicant’s visa under s 501BA(2) of the Migration Act (the Minister’s Decision). The applicant was notified of the Minister’s Decision on 5 July 2024.
The applicant ultimately moved on a further amended originating application filed on 6 February 2024 which advanced three grounds of judicial review. These grounds alleged that the Minister’s Decision was legally unreasonable or irrational or illogical. Specifically, it was contended that:
(a)the Minister failed to consider the significance of the fact that the applicant was no longer in a relationship with JP when assessing the applicant’s likelihood of reoffending (Ground 1);
(b)the Minister’s finding that the applicant’s rehabilitative efforts were in their “infancy” was illogical or unreasonable (Ground 2); and
(c)when the Minister assessed the social, medical or economic support available to the applicant in New Zealand, the Minister failed to consider relevant information in his possession (Ground 3).
THE NATURE OF THE POWER AND THE MINISTER’S DECISION
Section 501BA of the Migration Act is an exceptional power which may only be exercised by the Minister personally: s 501BA(4). The section provides 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 AAT;
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.
(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.
…
The conferral of this power expressly excludes any obligation to afford the person affected natural justice (s 501BA(3)), but that does not mean the Minister cannot give a person an opportunity to be heard: see Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 at [23] (White, Perry and Charlesworth JJ).
The Minister’s assessment and evaluation of the “national interest” is largely a “political question”: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). However, this “…does not mean that the power is unconstrained”: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [40] (Charlesworth J) and the cases there cited.
The Minister’s Decision records that the Minister was satisfied that the refusal decision was in the national interest: at [7]. The Minister noted that the power in s 501BA(2) of the Migration Act may only be exercised by the Minister personally and that the rules of natural justice did not apply to a decision under s 501BA(2): at [8]. However, the Minister also noted that he was not prohibited from providing the applicant an opportunity to be heard, but that he had decided not to afford such an opportunity: at [9]. The Minister recognised that the effect of this was that the applicant would not have the opportunity to advance reasons why an adverse decision should not now be made.
The Minister found that the applicant did not pass the character test because she had a substantial criminal record as defined in s 501(6)(a) and s 501(7)(c) of the Migration Act: at [11]-[13]. This finding was not challenged by the applicant. Turning to the question of the national interest, the Minister had regard to the protection of the community (focussing on the seriousness of the criminal conduct and the risk to the Australian community by way of future offending) and the expectations of the Australian community: at [18]-[51]. The Minister concluded that the use of his discretionary power to cancel the visa was in the national interest in light of his assessment of these matters: at [54]. However, in considering whether to exercise this discretion, the Minister also had regard to other factors including the best interests of minor children (at [58]-[61]), the applicant’s ties to Australia (at [62]-[71]), the legal consequences of the decision (at [72]) and the impediments the applicant would face if removed to New Zealand: at [73]-[78]. Having weighed these matters in the balance, the Minister nevertheless decided to exercise his discretion to set aside the Tribunal’s decision, and cancel the applicant’s visa: at [79]-[86].
GROUND 1
By Ground 1, the applicant contended that the Minister failed to consider the significance of the fact that the applicant was no longer in a relationship with JP when assessing the applicant’s likelihood of reoffending.
The applicant acknowledged the extraordinary breadth of the power conferred upon the Minister under s 501BA(2) of the Migration Act. However, the applicant submitted that the Minister must still exercise the power reasonably and, where the exercise of the power is conditional upon the formation of a state of satisfaction, there is an implied requirement that the state of satisfaction be reasonably formed: citing and relying upon Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J) and LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [40] (Charlesworth J).
The applicant submitted that her likelihood of reoffending was a matter the Minister identified as relevant to the mandatory consideration of the national interest. The applicant submitted that the Minister’s Decision did not address the fact that the applicant had separated from her previous partner, JP. It was submitted that the applicant’s relationship with JP was “maladaptive” and that he had been an adverse influence on her such that this relationship was a significant contributing factor to the majority of her offending. It was pointed out that a specific submission was made to the Tribunal that the significant majority of the applicant’s offending (including that which led to her most recent period of imprisonment) occurred when she was in JP’s company and/or was in an “abusive, drug fuelled relationship” with JP. It was submitted that the Minister failed to consider the submission made to the Tribunal to the effect that the applicant’s risk of reoffending had decreased because she ended her abusive relationship with JP “which applied during her offending period”. Further, it was said to be of significance that the Tribunal had largely accepted these submissions and concluded that it was not persuaded that the applicant represented any kind of “significant risk of re-offending” including because she had ceased her ties with JP. It was also pointed out that JP’s influence on the applicant’s offending was also considered as part of the Sentencing Assessment Report and in the sentencing remarks of the sentencing Judge.
The applicant submitted that the “fact that multiple decision-makers” had taken into account the applicant’s relationship with JP was not only relevant but was “manifestly material” to the Minister’s assessment as to the applicant’s risk of reoffending when exercising his power under s 501BA(2)(b). It was further said that because this relationship was so “manifestly material”, the Court would not infer that the Minister had given some implicit consideration to it. It was also submitted that to the extent that the Minister made reference to the opinion expressed by a forensic psychologist, Dr Jacqui Yoxall, which mentioned the prospect of the applicant continuing to apply strategies such as avoiding “negative social influences”, this was not a reference specifically to JP and did not capture the significance of JP’s influence on the applicant.
It was contended that the significance and materiality of the Minister’s failure could be discerned by comparing the conclusions reached by the Minister and the Tribunal as to the risk the applicant posed to the community. The Minister concluded that there was a “low, but not negligible likelihood” that the applicant would reoffend and that the applicant continued to “pose a significant risk” to the community and gave this matter “very significant weight”. By contrast, the Tribunal had not been persuaded that the applicant represented “any significant” risk to the community. It was submitted that, in these circumstances, there was a realistic possibility that the outcome of the Minister’s Decision could have been different had the Minister not erred.
I do not accept the applicant’s submissions.
As already mentioned, the power under s 501BA is an exceptional one. The “national interest” criterion in s 501BA(2)(b) is “broad and evaluative”: Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [156]–[157] (Griffiths, White and Bromwich JJ). However, as has been observed, this “…does not mean that the power is unconstrained”: LJTZ at [40] and the cases there cited.
In assessing whether an administrative decision is legally unreasonable (or illogical or irrational), it is to be borne in mind, as Allsop CJ stated in Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21], that the question is “whether a decision-maker could reasonably come to the conclusion” reached on the same material. If reasonable minds might differ on the conclusion reached, the decision will not be considered illogical or irrational: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ).
The Minister was not bound to take into account the same matters as the Tribunal or to “review” the Tribunal’s decision. That is because s 501BA(2) does not invest the Minister with a review power, but an “override power”: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; (2022) 294 FCR 270 at [28] (Mortimer J, as her Honour then was). As was the case in Tereva, the applicant’s submission here sought to give “the Tribunal’s decision a substantive status for the purposes of the Minister’s decision-making that s 501BA does not itself afford”: Tereva at [27].
As the Full Court stated in Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61]:
The primary judge held, with respect, correctly, that the power under s 501BA is fundamentally different from that which is exercised under s 501CA (Reasons at [51]). Section 501CA requires the Minister to invite representations from the applicant and, having received and considered those representations, for the Minister to be satisfied that the person passes the character test or that there is another reason why the decision should be revoked. There is no correlative requirement in s 501BA. To the contrary, as submitted by the Minister, s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA(2). As has been observed however in the discussion above in relation to Ground one, should the Minister discern that there is insufficient probative material before him or her, s 501BA(3) does not preclude the Minister from asking for further material.
(Emphasis added.)
The Full Court further reasoned in Vargas at [62] that:
Consequently, failing to consider material that was before the Tribunal during the revocation process (which at best was a permissive factor that bore upon the Minister’s state of satisfaction under s 501BA(2)(b)) could not, without more, go to jurisdiction.
That reasoning, as applicable to the exercise of the power under s 501BA, was applied by Derrington and Hespe JJ in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [123]:
As was observed in EUF20 in relation to a relevantly indistinguishable power, being s 501(3) of the Act, there is no free-standing obligation to have regard to new information received by the Minister even if it was possibly relevant. Indeed, given the exceptional nature of the power in s 501BA(2): DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 641 – 642 [13]: and the relative decisional freedom of the Minister as to what might be considered in determining what is in the national interest: Vargas at 403 [61]: any failure of the Minister to consider material which was presumptively relevant to the decision cannot, without more, go to jurisdiction: Vargas at 403 [62].
(cf Feutrill J at [136].)
It follows that the Tribunal’s consideration of the significance of the relationship between the applicant and JP, and the conclusions that the Tribunal reached as to the applicant’s risk of reoffending, did not bind the Minister as to the “decisional freedom” conferred upon him in making a determination as to the national interest.
The applicant relied upon the decision of Charlesworth J in LJTZ. There, her Honour stated as follows at [46]:
In the absence of mandatory relevant considerations, it was otherwise for the Minister to identify for himself (within the bounds of legal reasonableness) the matters he considered to be relevant to the national interest. The Minister relevantly identified the applicant’s rehabilitative prospects and the interests of the applicant’s minor children as among the relevant factors. By necessary implication, the Minister was required to make findings about those matters in reaching the requisite state of satisfaction under s 501BA(2)(b). In that respect, there was a fact finding aspect of the power that was essential to its exercise, and that was itself to be undertaken within the bounds of legal reasonableness. Having identified the relevant considerations in the particular case, the task required that the Minister have regard to such evidentiary material that bore on those considerations and to identify the weight to be afforded to them.
(Emphasis added.)
However, it is necessary to observe that Charlesworth J made these observations in a different factual context where the Minister did not have any of the materials that were before the Tribunal. This is made plain from her Honour’s judgment at [36]:
This is not a case in which the Minister’s representatives invite the Court to draw inferences from the written Reasons to the effect that the Minster had regard to material before him. Here, it is not disputed that the Tribunal information was not before the Minister. It is not disputed that the Minister had no regard to it, notwithstanding the statement at [11] of the Reasons. The statement at [11] is simply untrue.
(Emphasis added.)
It was in light of that factual context that Charlesworth J reasoned at [46]ff that if the Minister was to make findings about rehabilitative prospects and the best interests of the children, the Minister was required to act reasonably on the basis of actual evidence before him given that the Minister had asserted that he had regard to those materials when, in fact, this was not true. The unique facts that prevailed in LJTZ were further recognised by her Honour in Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 at [19].
The position in LJTZ is far removed from the present case.
Here, when the Minister’s Decision at [33]-[42] is read as a whole, it is plain that the Minister not only had before him the materials and evidence that were before the Tribunal, but also that the Minister had in fact considered the evidence and submissions that the applicant made to the Tribunal. This included the applicant’s evidence and submissions as to the relationships she had formed with those who were abusive and had a negative influence on her. Specifically, at [33], the Minister stated that:
In terms of an explanation for her past offending, I have been guided by the factors identified by [the applicant] in her Statement of Facts, Issues and Contentions provided to the AAT and the factors identified in the report of Dr Jacqui Yoxall (Attachments P and R). [The applicant] has disclosed having been raped when she was aged 16 or 17, and that as a result her mental health declined, and she became involved in escorting or sex work from the age of 19. [The applicant] stated that she commenced experimenting with drugs in 2011 when she was about 15 years old, and her use of harder drugs commenced when she became involved in escorting or sex work in 2015 (age 19). This eventually developed into a drug addiction (primarily GHB and crystal methylamphetamine), resulting in her entering violent relationships and being influenced by negative peers (Attachments E, F, I, P, Q and R).
(Emphasis added.)
The Minister also noted at [37]-[42] the applicant’s evidence as to her rehabilitation, and that of her family and partner to the effect that she had matured and was drug free. The Minister accepted that “the influence of [the applicant’s] family, partner and friends would serve to lower the risk of reoffending”.
As is apparent from the above passages, the Minister did not disregard the evidence before him as to the applicant’s relationships and their negative influence on her. As a result, I am not satisfied that the Minister failed to have regard to relevant material that was before him in making an assessment on reasonable grounds as to the national interest. The applicant’s contentions here did no more than allege that the Minister should have come to the same conclusions that the Tribunal had reached. These contentions did not establish legal unreasonableness.
Ground 1 fails.
GROUND 2
By Ground 2, the applicant contended that the Minister’s Decision was legally unreasonable because the Minister found that the applicant’s rehabilitative efforts were in their “infancy”.
The applicant accepted that in order to establish that a decision maker’s finding is unreasonable (or “illogical” or “irrational”), it must be established that no rational or logical decision maker could arrive at that finding on the same evidence: citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] (Crennan and Bell JJ). The applicant submitted that the high threshold to establish error had been satisfied because it was factually incorrect for the Minister to characterise the applicant’s rehabilitative efforts as being in their “infancy” at the time that the Minister’s Decision was made. The applicant submitted that the evidence before the Minister was to the effect that, apart from a brief relapse in mid-2020 (during the COVID-19 pandemic) the applicant had been undertaking considerable rehabilitative efforts since February 2019 including abstaining from drugs, completing responsible service of alcohol and gambling qualifications, gaining employment, completion of various counselling and treatment programs. It was submitted that these steps were regarded as being prominent by the sentencing Judge and that the Minister’s assessment of them as being in their “infancy” had no logical or rational basis.
The Minister’s consideration of the applicant’s rehabilitative efforts needs to be viewed in its full context. The reference by the Minister to the applicant’s efforts being in their “infancy” cannot be parsed and isolated so as to be deprived of that context. The Minister clearly had regard to the applicant’s criminal history which extended beyond an examination of her most recent offences and included the fact that her more recent offending occurred whilst she was on bail for other offences: at [23]. The Minister also had regard to the fact that whilst the applicant had expressed remorse for her past offending (at [34]):
… she maintains that she did not commit the offences of in company rob while armed with dangerous weapon and Impersonate police officer and exercise powers/functions in January 2019.
(Emphasis in original.)
The Minister further observed at [36] that:
Although it was [the applicant’s] right to plead not guilty, electing to take the matter to trial is inconsistent with a demonstration of remorse. Equally, the Judge found that as [the applicant] maintained her plea of not guilty, the Court was unable to make a finding of remorse (Attachment C). Accordingly, I find that whilst [the applicant] has displayed remorse generally for her past offending, she is not remorseful for those very serious offences found to have been committed by her in January 2019.
(Original emphasis removed.)
It was after addressing the applicant’s qualified expressions of remorse, that the Minister then turned to the applicant’s rehabilitative efforts. As to this topic, the Minister’s Decision records the following at [37]-[38]:
I do have evidence before me of rehabilitation [the applicant] has undertaken (Attachments F, G, H, I, J, P, Q and R). Following a period of remand in February 2019, [the applicant] submits that she made positive changes in her life, including completing Responsible Service of Alcohol and Responsible Service of Gambling certificates; gaining employment; and ceasing her drug use (Attachment P). However, of concern to me is that following these rehabilitative attempts, on 8 June 2020, [the applicant] committed the further offence of Drive vehicle, illicit drug present in blood – 1st off (Attachment A).
[The applicant] claims that aside from this “short relapse in mid-2020” she has remained drug-free (Attachment P). I acknowledge that whilst incarcerated [the applicant] undertook a range of rehabilitative efforts. This included completing the Intensive Drug and Alcohol Treatment Program (IDATP) in October 2022, which was followed by a series of negative drug tests, and I note that [the applicant] was selected as a peer mentor to others in that program. She also assisted the Salvation Army Chaplain and undertook courses in Health Survival Tips; Workplace Health and Safety; Seasons for Growth; Positive Lifestyles; and Nexus: Planning for Release (Attachments K, P and R). In immigration detention, [the applicant] consulted a drug and alcohol counsellor on a fortnightly basis; attended drug and alcohol nurses fortnightly including for drug testing; and completed the Smart Recovery Program every fortnight.
(Original emphasis removed.)
The Minister’s Decision then records the following at [42]-[44]:
I have found that the nature of [the applicant’s] conduct is very serious. I have further found that violent offending such as robbery where weapons are present has the potential to cause serious physical and/or psychological injury and financial harm to members of the Australian community, if repeated.
I accept and place weight on the recent report of Dr Jacqui Yoxall (Attachment R). I have preferred the report of Dr Yoxall over the report of Kim Dilari (dated 25 June 2021, Attachment G) and the Sentencing Assessment Report (Attachment H) provided by [the applicant], as it is the most recent independent expert report before me and was prepared for the purposes of the proceeding before the AAT. Dr Yoxall opined that if [the applicant] continued to apply rehabilitative strategies and avoided drugs, alcohol and negative social influences and managed her mental health, her “risk of violence [sic] offending will be low”. I note that this is consistent with the Judge’s finding that [the applicant] had strong prospects of rehabilitation and was unlikely to reoffend (Attachment C). Similarly, the AAT accepted that [the applicant’s] risk of reoffending was now ‘low’ based on the evidence given by Dr Yoxall at hearing Attachment D.
Having accepted Dr Yoxall’s opinion, I consider there to be a low likelihood that [the applicant] will reoffend. However, [the applicant] committed a very serious violent offence. I consider that her rehabilitative efforts, whilst positive, are in their infancy and are ongoing, and as Dr Yoxall opines, the risk of reoffending is premised on [the applicant’s] abstinence from drugs, alcohol, maintaining her mental health and maintaining stable relationships.
(Original emphasis removed; emphasis added.)
As will be apparent from the above passages, the Minister’s assessment of the applicant’s rehabilitative efforts involved a more fulsome analysis than mere acceptance of the fact that she had taken steps towards rehabilitation. The Minister’s assessment took into account the qualified remorse that the applicant had expressed for her serious offending, together with the fact of her relapse in mid-2020, and, importantly, took into account an expert opinion to the effect that the applicant’s future prospects depended on the applicant continuing to apply rehabilitative strategies. It is in this context that the Minister considered that these steps were positive, but were in their “infancy” and ongoing.
In my view, the Minister was using the word “infancy” not to suggest that the rehabilitative steps had only just commenced, but as a relative yardstick by which to express the conclusion that the applicant still had some way to go in her rehabilitation and in recognition of the applicant’s relative youth and the reality that her recovery was an ongoing process. I do not consider that the use of that descriptor, without more, resulted in the Minister’s reasoning being legally unreasonable in the sense of it being outside the bounds of rational decision making. As Mortimer CJ stated in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81]:
To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [80] (Nettle and Gordon JJ). In this context, the term “abuse” of power refers to an exercise of power other than for the purposes and within the limits conferred.
I am not satisfied that the applicant has established legal unreasonableness to this standard. Accordingly, Ground 2 fails.
GROUND 3
By Ground 3, the applicant contended that, when the Minister assessed the social, medical or economic support available to the applicant in New Zealand, the Minister failed to consider information in his possession. It was submitted that this information included that:
(a)the applicant did not know her extended family in New Zealand in detail and only included them in the “Personal Circumstances Form” provided to the delegate because she knew of their existence based on what she had been told by others and was endeavouring to be as frank as possible in her disclosure;
(b)the applicant did not expect to receive any significant level of support from these family members in New Zealand; and
(c)when the applicant was previously in New Zealand to attend university, members of her extended family were contacted to provide her with support but no such support was provided.
The applicant submitted that the Minister erred by failing to perform “the fact finding task that necessarily followed from his own identification of the topic as not only relevant but of critical importance”: citing LJTZ at [134]. Moreover, it was submitted that the Court should infer that, in acknowledging the applicant’s extended family in New Zealand, the Minister considered that the hardship the applicant would otherwise face in New Zealand was “mitigated” or “discounted” by the presence of the extended family. It was further said that this was the only way to read the Minister’s reasoning on this particular point.
It is again necessary to set out in full, and in context, the finding made by the Minister. The Minister stated at [77] that:
Social, medical and/or economic support available in New Zealand
[The applicant] would have access to the same medical, social and economic support as that available to other New Zealand citizens. [The applicant’s] history of employment in Australia would be useful for her obtaining similar employment in New Zealand.
However, I accept that [the applicant’s] mental health issues may deteriorate or worsen if she were to return to New Zealand. I find that [the applicant] will likely experience practical, financial and emotional hardship if removed to New Zealand because of her mental health issues and a lack of family and social support. I note however that she has declared some extended family in New Zealand.
I have accordingly attributed this consideration moderate weight against the cancellation of [the applicant’s] visa.
As is apparent from the above passages, the Minister accepted that the applicant’s mental health issues may worsen if she were to return to New Zealand, including because of likely emotional and other hardship because of a “lack of family and support”. The Minister’s further reference to the applicant having “some extended family in New Zealand” merely recorded a fact the applicant had herself declared. I do not consider that the Minister adverted to this fact to mitigate or otherwise discount the hardship that the applicant would likely endure upon returning to New Zealand. The Minister here was drawing upon the materials the applicant had put before the delegate and the Tribunal. In my view, there was no error in fact finding.
I am not satisfied that the applicant has established any error, let alone legal unreasonableness. Accordingly, Ground 3 fails.
APPLICATION FOR SUPPRESSION OF IDENTITY
The applicant sought orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) seeking the suppression and non-publication of her identity. The orders were pressed on the basis that the materials before the Court disclosed that the applicant had been subjected to a sexual assault when she was a minor. It was submitted that it was necessary to make the orders to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the FCA Act. The applicant submitted that the orders should be made for 50 years. The applicant also observed that confidentiality orders were made by the Tribunal.
The Minister did not oppose the making of orders on a final basis including for the period for which they were sought.
At the hearing before me, I made orders on an interim basis pursuant to s 37AI of the FCA Act. Having considered the matter further, I am satisfied that the orders should be made under s 37AF on the ground specified in s 37AG(1)(a). The orders are necessary to prevent prejudice to the proper administration of justice which would otherwise be occasioned by the disclosure of information that would identify that the applicant was the subject of a serious sexual assault that was perpetrated when she was a child. Pursuant to s 37AJ of the FCA Act, in doing so the Court must “ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. The applicant sought a period of 50 years in view of the applicant’s current age. I am satisfied that the order should operate for that duration.
DISPOSITION
The further amended originating application should be dismissed and the applicant should pay the Minister’s costs as agreed or taxed. However, I will make orders under s 37AF as set out above.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. Associate:
Dated: 21 March 2025
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