FEDERAL COURT OF AUSTRALIA
CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480
File number: NSD 1078 of 2024 Judgment of: RAPER J Date of judgment: 14 May 2025 Catchwords: MIGRATION – mandatory cancellation of visa – where the (then) Administrative Appeals Tribunal had set aside the decision of the Minister, under s 501(3A) of the Migration Act 1958 (Cth), to cancel the applicant’s visa on the basis of him having been convicted and sentenced to a term of 12-months’ imprisonment – where the applicant had applied for a protection visa in the year after the Minister had cancelled mandatorily the applicant’s visa – where the review processes associated with that application had not been exhausted prior to the last cancellation decision – where the Minister’s legal representatives told the applicant that they had no instructions to seek a review of the Tribunal’s decision relating to the cancellation decision – where the applicant then withdrew his protection claim review application before the Tribunal and the Minister subsequently exercised his power under s 501BA to cancel the applicant’s visa – whether the Minister’s decision was legally unreasonable because the Minister purportedly deferred assessment of the applicant’s protection claims in circumstances where the applicant was “not free” to bring his protection application (having withdrawn it) and having identified the legal consequences of his decision as including removal or pending removal, detention, gave no weight to the applicant’s protection claims – whether the Minister’s decision was legally unreasonable when making its findings and giving its reasons with respect to the risk the applicant posed to the community – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 34AF, 37AF, 37AG, 37AG(1)(a), 37AG(1)(c)
Migration Act 1958 (Cth) ss 48A, 48B, 91X, 91X (1), 91X(1)(a), 189, 197C(3), 198, 501(1), 501(2), 501(3A), 501(3A)(a)(i), 501(6)(a), 501(7)(c), 501BA(2), 501BA(2)(b), 501BA(3), 501CA, 501CA(4)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 33
Cases cited: AIX20 v Minister for Home Affairs [2020] FCA 1640
AJN23v Minister for Immigration, Citizenship and Multicultural [2024] FCAFC 103; 304 FCR 586
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609
Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1
Chetcutiv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758
ECE21 v Minister for Home Affairs [2021] FCA 1447
ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422
EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; 298 FCR 492
Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1
HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3675
HSRN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377
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Details
- Case
- [2025] FCA 480
- Decision Date
CaseChat Overview and Summary
The case of CMP25 v Minister for Immigration and Multicultural Affairs involved the applicant, CMP25, who had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) and subsequently faced another cancellation under s 501BA. The applicant argued that the Minister's decision to cancel his visa was legally unreasonable because it failed to consider his protection claims and did not adequately weigh the risk he posed to the community. The Administrative Appeals Tribunal had previously set aside the Minister's decision to cancel the visa, but the Full Court of the Federal Court quashed that decision and remitted it back to the Tribunal. The Tribunal subsequently revoked the Minister's decision to cancel the visa. Despite this, the Minister exercised his power under s 501BA to cancel the applicant's visa again. The applicant's application to review this decision was dismissed by the Federal Court.
The legal issues in this case centred on whether the Minister's decision to cancel the applicant's visa was legally unreasonable. The applicant argued that the Minister was obliged to consider his protection claims and could not defer such consideration, and that the Minister did not give adequate weight to these claims in making his decision. The applicant also contended that the Minister's findings and reasoning regarding the risk posed to the community were unreasonable, illogical, or irrational. The court had to determine if the Minister's decision was made in accordance with the relevant provisions of the Migration Act and whether it was legally sound.
The Federal Court examined the Minister's exercise of power under s 501BA, noting that the Minister has broad discretion to cancel a visa if satisfied that the person does not pass the character test and that the cancellation is in the national interest. The court highlighted that while the Minister is required to form a state of mind about the national interest, the Act does not mandate specific factors to be considered in making this determination. The court also observed that the decision is not subject to the rules of natural justice but must be made reasonably. In assessing whether the Minister's decision was legally unreasonable, the court applied a high threshold, requiring a significant departure from the underlying premises of the exercise of power to constitute an abuse.
The court concluded that the Minister's decision was not legally unreasonable. It found that the Minister had exercised his discretion reasonably and had adequately considered the relevant factors, including the applicant's protection claims and the risk he posed to the community. The court dismissed the application and ordered that the applicant pay the respondent's costs.
The legal issues in this case centred on whether the Minister's decision to cancel the applicant's visa was legally unreasonable. The applicant argued that the Minister was obliged to consider his protection claims and could not defer such consideration, and that the Minister did not give adequate weight to these claims in making his decision. The applicant also contended that the Minister's findings and reasoning regarding the risk posed to the community were unreasonable, illogical, or irrational. The court had to determine if the Minister's decision was made in accordance with the relevant provisions of the Migration Act and whether it was legally sound.
The Federal Court examined the Minister's exercise of power under s 501BA, noting that the Minister has broad discretion to cancel a visa if satisfied that the person does not pass the character test and that the cancellation is in the national interest. The court highlighted that while the Minister is required to form a state of mind about the national interest, the Act does not mandate specific factors to be considered in making this determination. The court also observed that the decision is not subject to the rules of natural justice but must be made reasonably. In assessing whether the Minister's decision was legally unreasonable, the court applied a high threshold, requiring a significant departure from the underlying premises of the exercise of power to constitute an abuse.
The court concluded that the Minister's decision was not legally unreasonable. It found that the Minister had exercised his discretion reasonably and had adequately considered the relevant factors, including the applicant's protection claims and the risk he posed to the community. The court dismissed the application and ordered that the applicant pay the respondent's costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs on an agreed or assessed basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The application advanced two grounds of review: First, that the Minister’s decision is affected by jurisdictional error in being unreasonable, illogical or irrational in the findings and reasoning advanced in respect of the applicant’s protection claims. The unreasonableness was said to arise because (a) the Minister was obliged to consider the applicant’s protection claims and could not defer such consideration (but had deferred consideration or failed to consider); and (b) the Minister, having identified legal consequences of his decision as including removal and pending removal, detention, did not give the applicant’s protection claims any weight. Secondly, that the Minister’s decision is affected by jurisdictional error in being unreasonable, illogical or irrational in the findings and reasoning advanced in respect of the risk that the applicant posed to the Australian community.Background The relevant background reveals that, prior to the most recent cancellation by the Minister of the applicant’s visa, pursuant to s 501BA(2) of the Act (being the subject of this review), the Minister had (mandatorily) cancelled the applicant’s visa on 15 August 2018. On 15 August 2022, the Minister’s delegate refused to revoke the mandatory cancellation (D). Then that decision was the subject of successful review before the Tribunal on 8 November 2022: HSRN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377, and then the Full Court quashed the Tribunal’s decision and remitted it back to the Tribunal to be redetermined: Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; 257 FCR 662. The Tribunal redetermined the applicant’s application to set aside the Minister’s decision not to revoke the cancellation and determined, on 13 November 2023, that the Minister’s decision be set aside and the mandatory cancellation of the applicant’s visa be revoked: HSRN v the Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3675 (T). Notably, also, a year after the Minister had mandatorily cancelled the applicant’s visa, and during the period that the review processes with respect to that decision were being exhausted, the applicant brought, on 4 April 2019, an application for a Protection (Class XA) (subclass 866) visa. This application was refused by a delegate of the Minister on 18 July 2019 and the delegate’s decision was affirmed by the Tribunal on 28 October 2019 (Member Cranston). No citation is available. The applicant subsequently reviewed that decision in the Federal Circuit and Family Court of Australia, and on 20 December 2022 (a year before the Tribunal’s second decision revoking the mandatory cancellation of the applicant’s visa on 13 November 2023), quashed the Tribunal’s decision and remitted the protection visa application back to the Tribunal for redetermination: XY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1076. Despite that decision being made a year before the Tribunal’s second decision revoking the cancellation of his then extant visa, the applicant’s further review of the Minister’s decision regarding his protection visa claim had not been heard and determined by the time of the Tribunal’s second decision to revoke the mandatory cancellation of the applicant’s visa.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
By s 501BA, the Minister has the discretionary power to set aside a decision to revoke a mandatory visa cancellation if satisfied that both the person does not pass the character test by reason of the operation of certain provisions (in this case, because of the operation of s 501(6)(a) on the basis of s 501(7)(c)), and that the cancellation is in the national interest. Section 501BA (as it then was) was in the following terms: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. As stipulated by s 501BA(2), the Minister is required to form a state of mind about the national interest at the time that the power is exercised. The discretion is broad and evaluative. The Act does not stipulate any factors that the Minister must have regard to when achieving the requisite state of satisfaction regarding whether the cancellation is in the national interest: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; 306 FCR 156 at [44] per Derrington and Hespe JJ; Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61]; Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1 at [20]–[21]. This is so, given “national interest” is a perspective of a largely political nature: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]. By contrast to other provisions, s 501BA(3) specifically removes the obligation to afford a person procedural fairness. However, it has been held with respect to similar provisions, the Minister must reach the requisite state of satisfaction reasonably: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane Nettle and Gordon JJ. A person must overcome a high threshold in establishing that a decision is affected by legal unreasonableness. As observed by Mortimer CJ in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162 at [81]: 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 forImmigration and Border Protection v Singh (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) 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.
Ratio Decidendi
Legal Principle Established
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