BTLD v Minister for Immigration and Multicultural Affairs

Case [2025] FCA 600

FEDERAL COURT OF AUSTRALIA

BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600  

File number(s): NSD 1489 of 2024
Judgment of: BURLEY J
Date of judgment: 6 June 2025
Catchwords:

MIGRATION – application for judicial review of decision of the Minister for Immigration and Multicultural Affairs made under s 501BA(2) of the Migration Act 1958 (Cth) – application dismissed

MIGRATION – whether the Minister erred by not properly considering the effect of their decision upon the applicant – the direct and immediate effect of the decision upon the applicant – whether the applicant could apply for a protection visa and when the decision-maker may be obliged to consider the effect of non-refoulement obligations – no error found

MIGRATION – whether the Minister failed to properly consider the best interests of the applicant’s child, particularly any effect that the applicant’s indefinite detention may have – whether the applicant would be the subject of indefinite detention – Minister not obliged to speculate upon the outcome of potential protection visa application – no error found

MIGRATION – whether the Minister erred by relying upon no evidence in finding that the applicant’s criminogenic factors were presently untreated – definition of “no evidence” – evidence demonstrates prospective treatment and employment and community factors that were inadequate to demonstrate treatment of criminogenic factors – applicability of natural justice to s 501BA(3) of the Migration Act – no error found

Legislation: Migration Act 1958 (Cth) ss 198, 501BA, 501BA(2), 501BA(2)(b), 501BA(3), 501CA(4)(b)(ii)
Cases cited:

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446

EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; 298 FCR 492

Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; 249 FCR 275

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

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

NZYQ v Minister for Home Affairs [2023] HCA 37; 97 ALJR 1005

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582

PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483

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

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146

Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387

VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 50
Date of hearing: 28 March 2025
Solicitor for the Applicant: Mr C Ukaegbu of Spiritus Law Group
Counsel for the Respondent: Mr B D Kaplan
Solicitor…

Continue reading BTLD v Minister for Immigration and Multicultural Affairs

Sign in free to access the full text

Details
AGLC
BTLD v Minister for Immigration and Multicultural Affairs [2025] FCA 600
Case
[2025] FCA 600
Decision Date

CaseChat Overview and Summary

In the matter of BTLD v Minister for Immigration and Multicultural Affairs, the Federal Court was tasked with reviewing the decision of the Minister to cancel the applicant's visa under the Migration Act 1958 (Cth). The applicant, a Nigerian citizen, had his visa revoked on the basis of failing the character test due to criminal convictions. The primary legal issues revolved around whether the Minister erred by not adequately considering the consequences of the visa cancellation on the applicant and his child, and whether the Minister's reliance on the absence of evidence regarding the treatment of the applicant's criminogenic factors was justified.

The Court examined the Minister's decision-making process and concluded that no jurisdictional error was evident. Regarding the impact of the decision on the applicant, the Court found that the Minister was not required to speculate on the potential outcomes of a protection visa application, as the applicant had not yet lodged such an application. As for the best interests of the applicant's child, the Court determined that it was reasonable for the Minister to proceed on the premise that the applicant would be removed from Australia as soon as reasonably practicable, and thus did not need to consider the prolonged detention scenario.

Finally, the Court assessed the Minister's reliance on the absence of evidence indicating treatment of the applicant's criminogenic factors. The Court held that while there was some evidence suggesting prospective treatment, it did not conclusively demonstrate that the factors were currently being treated. Therefore, the Minister's conclusion that the factors were presently untreated was supported by the evidence.

The Court dismissed the application and ordered that the applicant's name be anonymised and replaced with the pseudonym BTLD, and that the applicant pay the Minister's costs.

Orders

Orders of the court

1. The applicant’s name be anonymised and replaced with the pseudonym BTLD.

2. The application otherwise be dismissed.

3. The applicant pay the first respondent’s costs, to be taxed or agreed.

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

Background

Background to the litigation

The applicant was represented in the application by Spiritus Law Group, solicitors. The Minister was represented by Mr B Kaplan of counsel. Both filed written submissions in advance of the hearing. 2. BACKGROUND The factual background to the application may be briefly stated and is not controversial. The applicant is a citizen of Nigeria who arrived in Australia on 2 November 2015 at the age of 29 as the holder of a Student (Class TU) (Subclass 572) visa. He left Australia briefly in 2017 and upon his return was granted a Bridging A (Class WA) (Subclass 010) visa. On 8 November 2021, he was convicted by a judge of the District Court of New South Wales with “deal with property proceeds of crime” of a value of less than $100,000 and “recklessly deal with proceeds of crime” greater than $5,000. He was sentenced to an aggregate term of imprisonment of 3 years and 6 months. The applicant does not dispute that he does not pass the character test by virtue of his sentence. The sole question before the delegate and the Tribunal was whether there was another reason why the visa revocation should be cancelled under s 501CA(4)(b)(ii) of the Migration Act. The delegate and the Tribunal reached different conclusions on that subject, with the Tribunal concluding that the decision of the delegate must be set aside and the mandatory cancellation of the visa revoked. Section 501BA of the Migration Act provides that the Minister may set aside a decision of the Tribunal and cancel a visa that has been granted, if satisfied that the person does not pass the character test and “the Minister is satisfied that the cancellation is in the national interest”. In his decision, the Minister took into account a number of matters when considering the national interest, most particularly being protection of the community. In this regard he adverted to the seriousness of the criminal conduct, which he characterised as “very serious”; ([18] – [26]). Secondly, he examined the risk to the Australian community. In this regard, he considered the factors contributing to the past conduct of the applicant, including his: childhood and adolescence; financial pressures; peer pressure and low self-esteem; medical issues including mental health issues and remorse and rehabilitation; ([27] – [58]). Thirdly, he evaluated the expectations of the Australian community; ([59] – [62]). The Minister noted that in deciding whether he was satisfied that it was in the national interest to cancel the visa, he was required to make an evaluative judgment. He concluded:64.In the specific case of [the applicant], I have I have [sic] considered the nature and seriousness of his proceeds of crime offending and have concluded that it is very serious. I have also considered the psychological and financial harm which would result if [the applicant] were to reoffend. I have also considered the likelihood of [the applicant] reoffending and have found he is [sic] a low but not negligible risk of reoffending, noting the absence of any treatment to the criminogenic factors which underpinned his offending. I have also considered the expectations of the Australian community.65.Having regard to all of the above, I conclude that the use of my discretionary power to cancel [the applicant]’s visa is in the national interest.

Evidence

Evidence Before The Court

Accordingly, ground 2 has not been made out. 3.3 Ground 3 – No evidence relied upon to find that criminogenic factors of the applicant are untreated In ground 3, the applicant contends that the Minister fell into jurisdictional error by finding that his “criminogenic factors” were “presently untreated” in circumstances where there was no evidence upon which such a finding could have been based, citing Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; 249 FCR 275 at [54] (Perry J) and VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18] – [19] (Gray, Moore and Weinberg JJ). The applicant draws attention to several matters that were before the Tribunal in support of the proposition that there was evidence before the Minister indicating that his criminogenic factors were being treated. The first is at [37] of the decision of the Tribunal, which is a summary of the applicant’s proposed treatment by a psychologist, Dr Carollyne Youssef, which is as follows:Dr Youssef said treatment would initially start on a fortnightly basis and then decrease over time. She said that the treatment would target the applicant’s vulnerabilities, namely his impulsivity and esteem issues. Dr Youssef opined that without addressing these factors with therapeutic intervention, the applicant would pose a high risk. As for the applicant’s pro-social network in Australia, Dr Youssef agreed that a good support network is part of intervention but said that a more targeted intervention was required to address underlying factors. Dr Youssef confirmed at hearing that she would be an appropriate person to provide the applicant with her recommended treatment. She also confirmed that the applicant had sought to see her for treatment, had undergone the intake process and was on the waitlist for available sessions. The confirmation in the final sentence is that the applicant had sought to see her for treatment and was on a wait list. However, it was not evidence that the applicant was receiving such treatment. The second was a pre-release report by Corrective Services NSW dated 6 November 2023, which records that “[the applicant] stated he is willing to undertake intervention to address his criminogenic needs”. The third is a passage in the decision of the Tribunal which summarises that should the applicant’s visa be reinstated, he has a secure offer of full-time paid employment with Nakango Vision Inc. The fourth is a different passage from the decision of the Tribunal noting that Walter Pospelyj, Anglican Chaplain at the Geoffrey Pearce Correctional Centre, had provided a letter dated 24 April 2024, and gave oral evidence, speaking highly of the applicant’s behaviour while in the correctional centre and saying that he would gladly offer the applicant support and assistance he requires. Whilst these matters paint a picture of the applicant as a person willing to receive help, they do not provide support for the conclusion that the Minister erred in the manner for which he contends.

Decision

Reasons for decision

Section 501BA (as it was at the time of cancellation) provides: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. In his further amended originating application, the applicant advances three grounds of review (particulars omitted):1.Error of law – the Minister failed to properly consider the legal consequence of the cancellation.2.The Minister failed to give proper, genuine and realistic consideration to the best interests of the Applicant’s child.3.The Minister’s finding is based upon no evidence. The applicant was represented in the application by Spiritus Law Group, solicitors. The Minister was represented by Mr B Kaplan of counsel. Both filed written submissions in advance of the hearing. 2. BACKGROUND The factual background to the application may be briefly stated and is not controversial. The applicant is a citizen of Nigeria who arrived in Australia on 2 November 2015 at the age of 29 as the holder of a Student (Class TU) (Subclass 572) visa. He left Australia briefly in 2017 and upon his return was granted a Bridging A (Class WA) (Subclass 010) visa. On 8 November 2021, he was convicted by a judge of the District Court of New South Wales with “deal with property proceeds of crime” of a value of less than $100,000 and “recklessly deal with proceeds of crime” greater than $5,000. He was sentenced to an aggregate term of imprisonment of 3 years and 6 months. The applicant does not dispute that he does not pass the character test by virtue of his sentence. The sole question before the delegate and the Tribunal was whether there was another reason why the visa revocation should be cancelled under s 501CA(4)(b)(ii) of the Migration Act. The delegate and the Tribunal reached different conclusions on that subject, with the Tribunal concluding that the decision of the delegate must be set aside and the mandatory cancellation of the visa revoked.

Ratio Decidendi

Legal Principle Established

Accordingly, the error that the applicant contends was made by the Minister is not established. 3.2 Ground 2 – Failure to give proper consideration to the best interests of child In ground 2, the applicant contends that the Minister’s decision was affected by jurisdictional error due to a failure properly to consider the best interests of his child, because the Minister failed to consider any impact of his indefinite detention on the child. The applicant submits that whilst the Minister took into account his relationship with his daughter and found that she will suffer separation anxiety with her father being taken away from her, he failed to give proper, genuine and realistic consideration to her best interests, citing as relevantly equivalent PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 at [67] (Perram J). The applicant submits that the Minister is bound to consider the best interests of the child should he be detained indefinitely while his protection visa is being processed or while he awaits removal proceedings, again citing PLQF at [67]. There is no dispute that in the present case, the Minister took into account the interests of the applicant’s daughter. He accepted that her best interests would be served if he maintained his close relationship with his daughter and that the relationship would be better in person (at [74]). He gave this consideration “very significant weight” as a factor in favour of permitting the applicant to retain their visa. However, unlike the facts in PLQF, the Minister did not consider that the applicant would be the subject of indefinite detention. To the contrary, at [86] he noted that under s 198 of the Migration Act unlawful non-citizens are liable to removal as soon as reasonably practicable. The Minister further notes that s 198 does not 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 (at [87]) and that it is open to the applicant to make an application for a protection visa, during which Australia’s non-refoulement obligations would be assessed (at [85]). As the applicant had not at the time of the decision made an application for a protection visa, it was not incumbent upon the Minister to speculate as to the outcome of that application, for the reasons given in section 3.1 above. In short, the position of the applicant was that he was liable under s 198 of the Migration Act to be deported within a foreseeable time after the making of the decision. The Minister was not obliged to take into account the consequences of any protection visa application that the applicant may subsequently lodge. Unlike in PLQF, where the Minister had found that the applicant was stateless and accordingly could not be removed to Bhutan or Nepal and accordingly it was irrational for the Minister to fail to consider the impact that sustained detention would have on the best interests of his children (PLQF at [65] – [67]), it was not irrational or illogical for the Minister in the present case to consider the best interests of the children on the premise that the applicant would be removed from Australia as soon as reasonably practicable.