BMX15 v Minister for Immigration and Border Protection

The applicant in this case, BMX15, sought to challenge the Minister's decision not to revoke the mandatory cancellation of his visa. The applicant argued that the Minister's decision was legally unreasonable as it failed to consider the risk to the Australian community posed by the applicant, did not consider the prospect that the applicant would be subject to indefinite detention upon the cancellation of his visa, and imposed an impossible standard of being unable to rule out the possibility of further offending. The Minister argued that the decision was not legally unreasonable and that the applicant's custodial status and prospect of indefinite detention had been considered.

The court found that the Minister had considered the risk posed by the applicant and that there was no basis for concluding that a different result could not have been reached if the applicant's offending had been less serious, even if further offending could not have been ruled out. The court also found that the Minister had considered the applicant's custodial status and that the applicant remained entitled to apply for a protection visa, which meant that the prospect of indefinite detention did not need to be considered. The court held that the Minister had not fettered her discretion by imposing an impossible standard and that the decision was not legally unreasonable.

The court dismissed the applicant's application and ordered that if the applicant sought an order as to costs, they must file and serve an application and a submission in support within 7 days. Any submission in opposition to such an order must be filed and served within 14 days. If no application for a costs order is made by the applicant, they must pay the respondent's costs of the application. The court's decision provides clarity on the application of s 501(3A) and s 501CA of the Migration Act 1958 (Cth) and the exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision.