GRCF v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2025] FCA 415

FEDERAL COURT OF AUSTRALIA

GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415  

File number(s): VID 747 of 2024
Judgment of: BENNETT J
Date of judgment: 29 April 2025
Catchwords: MIGRATION – application for judicial review of a Minister’s decision made personally under s 501BA of the Migration Act 1958 (Cth) – where part of the Minister’s reasoning illogical – whether illogicality was material – where the Minister did not obtain updated information about the Applicant – whether unreasonable to treat dated material as if it were up to date – whether sufficient consideration of legal consequences of decision – where three grounds advanced by the applicant succeed – application allowed – orders made
Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107

Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24

DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236

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

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1

KDSP v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108

Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150

Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299; [2022] FCA 1209

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266

Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200

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

Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892

Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154

Patrick v Australian Information Commissioner (2024) 304 FCR 1; [2024] FCAFC 93

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 98
Date of last submission/s: 14 March 2025
Date of hearing: 6 March 2025
Counsel…

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AGLC
GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415
Case
[2025] FCA 415
Decision Date

CaseChat Overview and Summary

In GRCF v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, GRCF, sought judicial review of the Minister's decision to cancel his visa under section 501BA of the Migration Act 1958 (Cth). GRCF, a young man from South Sudan who had experienced significant violence during the civil war, was initially granted an Orphan Relative visa and arrived in Australia in 2008. After serving a prison sentence for various criminal offences, his visa was mandatorily cancelled in 2020. Following a review by the Administrative Appeals Tribunal, his visa was reinstated, but it was subsequently cancelled by the Minister in June 2024. GRCF sought to overturn this decision.

The court was required to determine whether the Minister's decision was illogical, whether the Minister had treated dated material as if it were current, and whether the Minister had considered the legal consequences of the decision adequately. The court found that the Minister's decision contained significant illogicalities, particularly regarding the Minister's reliance on outdated information and the conflation of different types of remorse. The Minister did not obtain updated information about GRCF, and it was unreasonable to treat dated material as if it were up to date. Additionally, the Minister did not sufficiently consider the legal consequences of his decision. These errors were material, meaning they could have influenced the outcome of the decision. The court concluded that the Minister's decision should be quashed.

The court quashed the Minister's decision to cancel GRCF's visa and ordered that the decision be set aside. The Minister was also ordered to pay GRCF's costs. The Minister now has the discretion to reconsider the exercise of his power.

Orders

Orders of the court

1. The application is allowed.

2. A writ of certiorari issue, directed to the Respondent, quashing the decision made on 21 June 2024 to set aside a decision of the Administrative Appeals Tribunal made on 30 October 2023 and cancel the Applicant’s visa purportedly under s 501BA of the Migration Act 1958 (Cth).

3. The Respondent pay the Applicant’s costs, as taxed in default of agreement.

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

Background

Background to the litigation

For the reasons set out below, I accept that there was illogicality in the Minister’s decision which was material to the ultimate decision in the manner alleged in each of grounds one and two. Either ground would be sufficient for the decision to be set aside. I have separately concluded that even if that were not so, the third ground is established and this provides a separate basis for the decision to be set aside. The balance of the grounds have not been established. It is a matter for the Minister whether he decides to exercise his power afresh. BACKGROUND FACTS GRCF is a young man from South Sudan. His exact birthdate is unknown, but it is given as 1 January 1995. He experienced violence during the civil war in South Sudan. His father died in tribal fighting when he was 7 or 8 years old, and his mother died by suspected suicide some time after taking him to a refugee camp. The Applicant applied for and was granted an Orphan Relative (Subclass 117) (Class AH) visa in July 2008, sponsored by his older brother, who had already migrated to Australia. He arrived in Australia in September 2008. On 20 February 2019, the Applicant pleaded guilty to six charges, being robbery, theft, handling stolen goods, intentionally damage property, and two charges of possessing drugs of dependence. He was sentenced to a total effective sentence of five years and nine months’ imprisonment with a non-parole period of three and a half years. On appeal, one count of possessing a drug of dependence was set aside. The Court of Appeal otherwise concluded that his sentence was manifestly excessive and in early 2020 re-sentenced him to a total effective sentence of four years and eight months with a non-parole period of two and a half years. In May 2020, while the Applicant was serving a sentence of imprisonment, his visa was mandatorily cancelled under s 501(3A) of the Migration Act. The Applicant sought revocation of that cancellation decision. He was released from prison in mid-2022 before that request was decided. He was placed in immigration detention immediately upon his release. On 7 August 2023 a delegate of the Minister under s 501CA refused to revoke the cancellation decision that had been made in 2020. The Minister’s decision was reviewed by the AAT. The AAT overturned that decision on 30 October 2023, and the Applicant’s visa was reinstated. The Applicant was released from detention. The Applicant lived in the community for eight months following the AAT decision. On 21 June 2024 the Minister, acting personally, cancelled the applicant’s visa under s 501BA of the Migration Act. The Minister decided not to grant procedural fairness to GRCF in coming to his decision, but took into account information previously provided by the Applicant in his visa cancellation process. The Applicant was placed in immigration detention shortly thereafter. The Applicant was granted a bridging visa on 29 November 2024 and has been living in the community since that time. THE STATUTORY FRAMEWORK

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, the sixth ground is not established.CONCLUSION The decision of the Minister will be quashed. Whether there should be any reconsideration of the exercise of the power is a matter for the Minister.

Ratio Decidendi

Legal Principle Established

The Remorse Findings were a positive conclusion that the Applicant was not remorseful for his conduct in immigration detention. In my view, this was a matter which constituted an element of some significance to the overall analysis. This is borne out by careful consideration of the Statement of Reasons. The Minister highlighted GRCF’s purportedly evident lack of remorse as a core part of his conclusion on the national interest in a manner that did not separate remorse for immigration detention conduct from remorse for criminal conduct. At the conclusion of the section on the national interest, the Minister said at [57] of the Statement of Reasons (emphasis added): Conclusion on national interest considerations …In the specific case of [GRCF], I have had regard to the very serious nature of his offending; his serious conduct in immigration detention; his limited steps towards rehabilitation; and his lack of remorse. I have also had regard to the consideration of the protection of the Australian community, as well as the expectations of the Australian community, which I have found both weigh heavily in favour of a decision to cancel [GRCF’s] Class AH Subclass 117 Orphan Relative visa. It is clear that the Minister took into account a range of factors in carrying out his analysis. A number of core issues were specifically identified in the concluding paragraph. Of all the matters analysed, six were specifically referred to. One of those was the Applicant’s “lack of remorse”. This must be read as incorporating the Remorse Findings. Those findings were therefore an important component in the conclusion on the national interest. This conclusion is fortified by the subsequent paragraph [58] which said (emphasis added): Having regard to all of the above, I conclude that the use of my discretionary power to cancel [GRCF’s] Class AH Subclass 117 Orphan Relative visa is in the national interest. The Remorse Findings are incorporated into the overall conclusion of the Minister on the national interest. The removal of the Remorse Findings could have altered the balance of the analysis because it consisted of a range of matters which were each evaluated in an impressionistic way. Had this analysis been different so that the Minister concluded that it was not in the national interest to cancel the visa, then the visa cancellation would not have occurred. Given the relevance of the Remorse Findings to this conclusion, it must follow that there is a realistic possibility that the ultimate outcome could have been different had the error not been made. I reject the Minister’s contention that the Remorse Findings were not sufficiently important to, or were too remote from, the ultimate conclusion such that there was no realistic way that the result could have been different. It is tempting to conclude that the seriousness of the criminal findings overshadow the balancing of the factors engaged in by the Minister. However, I bear steadily in mind that a reviewing court does not engage in a review of the merits of the decision. This was made clear by the High Court in LPDT (at [29]): A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.