FEDERAL COURT OF AUSTRALIA
GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193
File number: QUD 471 of 2024 Judgment of: RANGIAH J Date of judgment: 17 March 2025 Catchwords: MIGRATION – where the applicant’s visa was cancelled by the respondent Minister under s 501BA of the Migration Act 1958 (Cth) (the Migration Act) – where mandatory cancellation of the applicant’s visa was revoked by a decision of the Administrative Appeals Tribunal (the Tribunal) – where Tribunal first published its decision and published its reasons later – where Minister made the decision prior to the Tribunal’s reasons being published – whether Minister was required to consider Tribunal’s reasons before making the decision or unreasonably failed to consider the reasons – whether any reasonable apprehension of bias arose – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) (repealed) ss 25(1), 25(4), 43, 43(1), 43(2) and 43(2A)
Migration Act 1958 (Cth) ss 476A, 500(1)(ba), 500(6L), 501, 501(3A), 501(6)(a), 501(7)(c), 501BA, 501BA(1), 501BA(2), 501BA(2)(b), 501BA(3), 501CA, 501CA(4), 501G, 501G(1), and 502
Cases cited: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Isbester v Knox City Council (2015) 255 CLR 135
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582
Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 80 Date of hearing: 21 November 2024 Counsel for the Applicant: Mr H Clift Solicitor for the Applicant: Angus Francis Lawyers Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Sparke Helmore ORDERS
QUD 471 of 2024 BETWEEN: GFE24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Introduction
[1]
Factual Background
[5]
Grounds of Review
[14]
Legislative Context
[15]
Minister’s Decision
[26]
Ground 1: Failure to consider the Tribunal’s reasons
[32]
Ground 2: Unreasonableness
[47]
Ground…
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Details
- AGLC
- GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 193
- Case
- [2025] FCA 193
- Decision Date
CaseChat Overview and Summary
In the case of GFE24 v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, a citizen of Papua New Guinea, sought judicial review of the Minister’s decision to cancel his visa under section 501BA of the Migration Act 1958 (Cth). The applicant had previously been convicted of rape and his visa was initially cancelled under section 501(3A). The Administrative Appeals Tribunal (the Tribunal) subsequently revoked the cancellation decision, but before it published its reasons, the Minister set aside the Tribunal’s decision and cancelled the applicant’s visa under section 501BA. The applicant argued that the Minister’s decision was flawed as it was made before the Tribunal’s reasons were published and that the Minister had failed to consider the Tribunal’s reasons or reasonably apprehended bias.
The legal issues before the court were whether the Minister was required to consider the Tribunal’s reasons before making the decision, whether the Minister unreasonably failed to consider the Tribunal’s reasons, and whether any reasonable apprehension of bias arose. The court had to interpret section 501BA and assess the Minister’s compliance with the statutory requirements. The court also considered whether the Minister's approach to certain evidence raised a reasonable apprehension of bias.
The court found that the Minister was not required to wait for the Tribunal’s reasons before exercising the power under section 501BA. The court noted that section 501BA expressly excludes the application of the rules of natural justice, and the Minister’s discretion under subsection 501BA(2) is conditioned on specific jurisdictional facts being satisfied. The court held that the Minister’s decision was not vitiated by jurisdictional error as it was not necessary for the Minister to consider the Tribunal’s reasons before making the decision. The court also rejected the applicant’s argument regarding apprehension of bias, finding that the Minister's cautious approach to certain evidence did not give rise to a reasonable apprehension of bias. Consequently, the application was dismissed and the applicant was ordered to pay the respondent’s costs.
The legal issues before the court were whether the Minister was required to consider the Tribunal’s reasons before making the decision, whether the Minister unreasonably failed to consider the Tribunal’s reasons, and whether any reasonable apprehension of bias arose. The court had to interpret section 501BA and assess the Minister’s compliance with the statutory requirements. The court also considered whether the Minister's approach to certain evidence raised a reasonable apprehension of bias.
The court found that the Minister was not required to wait for the Tribunal’s reasons before exercising the power under section 501BA. The court noted that section 501BA expressly excludes the application of the rules of natural justice, and the Minister’s discretion under subsection 501BA(2) is conditioned on specific jurisdictional facts being satisfied. The court held that the Minister’s decision was not vitiated by jurisdictional error as it was not necessary for the Minister to consider the Tribunal’s reasons before making the decision. The court also rejected the applicant’s argument regarding apprehension of bias, finding that the Minister's cautious approach to certain evidence did not give rise to a reasonable apprehension of bias. Consequently, the application was dismissed and the applicant was ordered to pay the respondent’s costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
I will discuss the factual background, the grounds of review and the legislative context before considering the parties’ submissions.Factual Background The applicant is a citizen of Papua New Guinea who is now 25 years of age. He has resided in Australia since 2017 as the holder of a Child (Class AH) (Subclass 101) visa. On 29 June 2020, the applicant was convicted of one count of rape and was sentenced by the District Court of Queensland to a term of imprisonment of five years and six months. On 14 June 2022, the applicant’s visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act. On 17 June 2022, the applicant made representations seeking the revocation of the cancellation decision. On 6 March 2024, another delegate of the Minister made a decision under s 501CA of the Migration Act not to revoke the cancellation decision. On 30 May 2024, the Tribunal made a decision setting aside the decision of the Minister’s delegate under s 501CA and substituting a decision to revoke the cancellation decision. Importantly, the Tribunal did not publish its reasons for making its decision on 30 May 2024, but indicated that it would, “give written reasons for this decision within a reasonable time of the decision”. On 4 June 2024, the Minister made his decision under s 501BA of the Migration Act to set aside the Tribunal’s decision and cancel the applicant’s visa. The Tribunal had not published its reasons for its decision by that time. The Minister recorded in his statement of reasons at [6] that:…[T]he AAT is yet to publish its reasons for decision. However I have had regard to the closing written submissions prepared by the parties which address the evidence that was adduced before the AAT. Further, as a consequence of the AAT’s decision, [the applicant’s visa] was reinstated. On 13 June 2024, the Tribunal published its reasons for its decision of 30 May 2024. On 9 July 2024, the applicant commenced the present judicial review proceedings pursuant to s 476A of the Migration Act.Grounds of Review By way of an Amended Originating Application, the applicant advances three grounds of review:1.The Respondent’s exercise of his power under s 501BA(2) of the Act to set aside the favourable decision of the Administrative Appeals Tribunal is vitiated by jurisdictional error because the Respondent failed to consider the reasons for the decision of the Tribunal and thereby did not consider the Tribunal’s reasoning at all.…2.The Respondent unreasonably arrived at his state of satisfaction that it was in the national interest to exercise the power under s 501BA because, in undertaking the fact finding exercise necessary to the exercise of the power:a.the Respondent failed to consider the whole of the material available; andb.further or alternatively, made findings that were not supported by some probative material or logical grounds.…3.The Respondent’s Decision is vitiated by jurisdictional error as it is affected by the reasonable apprehension of bias.Particularsi)In considering Dr Freeman’s evidence, the Respondent, at [33] of the Decision, stated ‘I note that there were some concerns raised about Dr Freeman’s ability to give an objective and impartial opinion, and I have approached Dr Freeman’s evidence with some caution…’.ii)The ‘concerns’ referred to at [33] of the Decision were matters stated in written submissions filed in the Tribunal on behalf of the Respondent.iii)In approaching Dr Freeman’s evidence in that way, a fair-minded lay observer might reasonably apprehend that the Respondent might not have brought an impartial mind to the Decision.(Errors in original.)Legislative Context
Evidence
Evidence Before The Court
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Decision
Reasons for decision
At the time of the Minister’s decision, s 501BA of the Migration Act provided: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 by application under Part 5(5)A decision under subsection (2) is not reviewable by application under Part 5 or 7.… The version of the Migration Act in force when the Tribunal delivered its decision on 30 May 2024 was Compilation No. 160. The Tribunal has since been replaced by the Administrative Review Tribunal and the Migration Act has been amended accordingly. The power vested personally in the Minister under s 501BA has been described as “draconian”, because of its “override” nature and express exclusion of the rules of natural justice: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270 (Tereva), [14]-[15] (Mortimer J). Section 501BA(2) imposes two jurisdictional facts of which the Minister must be satisfied before the Minister’s discretion arises under that provision. As Derrington J (with whom Collier and Downes JJ agreed) explained in NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582 at [40]:The discretionary power of the Minister under s 501BA(2) to set aside the original decision and cancel a visa is conditioned on the existence of the subjective jurisdictional facts described in paras (a) and (b) of that subsection. The first is the Minister’s satisfaction that the person does not pass the character test by reason of the operation of the enumerated provisions. … The second is the Minister’s satisfaction that cancellation of the person’s visa is in the national interest. The discretion, once enlivened, is conferred in general terms but is exercisable subject to any implied limitations that are to be found in the subject matter, scope and purpose of the Act… The Minister’s power under s 501BA(2) is also conditioned upon a decision under s 501CA having been made by a delegate of the Minister or Tribunal to revoke a decision made under subsection 501(3A) to cancel the relevant visa.
Ratio Decidendi
Legal Principle Established
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