Moli v Minister for Immigration and Multicultural Affairs

Case [2025] FCA 350

FEDERAL COURT OF AUSTRALIA

Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350

File number: WAD 296 of 2024
Judgment of: COLVIN J
Date of judgment: 15 April 2025
Catchwords: MIGRATION - application for judicial review of Minister's decision under s 501BA of the Migration Act 1958 (Cth) - where applicant alleged jurisdictional error in relation to formation of Minister's satisfaction that cancellation of applicant's visa was in the national interest - where grounds of review included failing to consider findings in parole assessment, failing to properly consider sentencing remarks and acting upon an erroneous view as to the scope of what may be considered to be in the national interest - consideration of statutory context, extrinsic materials and legislative history of s 501BA - consideration of authorities concerning s 501BA and 'national interest' - whether Minister's decision was unreasonable, irrational or illogical - jurisdictional error not established - application dismissed
Legislation:

Migration Act 1958 (Cth) ss 4, 65, 180A, 180B, 198AA, 198AB, 499, 501, 501A, 501B, 501BA, 501CA, 502

Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)

Migration Legislation Amendment Act 1994 (Cth)
Cases cited:

Anaki v Minister for Immigration and Border Protection [2018] FCA 77

Candemir v Minister for Home Affairs [2019] FCAFC 33; (2019) 268 FCR 1

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422

ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 278 CLR 75

FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454

Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417

Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1

Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; (2024) 303 FCR 261

Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1456

Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326

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

Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372

O'Sullivan v Farrer (1989) 168 CLR 210

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

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

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Plaintiff S156/2013 v Minister for Immigration and…

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AGLC
Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350
Case
[2025] FCA 350
Decision Date

CaseChat Overview and Summary

In the case of Moli v Minister for Immigration and Multicultural Affairs, the applicant, Moli, sought judicial review of the Minister's decision to cancel his visa under section 501BA of the Migration Act 1958 (Cth). The applicant argued that the Minister's decision was flawed due to various alleged errors, including a failure to consider findings from a parole assessment, an inadequate consideration of sentencing remarks, and acting on an incorrect understanding of the scope of the national interest. The primary legal issue for the court was whether the Minister's decision contained jurisdictional errors that warranted judicial review.

The court examined the statutory context, extrinsic materials, and legislative history of section 501BA to determine whether the Minister had erred in forming a satisfaction that cancelling Moli's visa was in the national interest. The court also considered relevant case law, particularly the High Court decision in Re Patterson; Ex parte Taylor, which addressed the exercise of visa cancellation powers under a different section of the Act. The court concluded that the Minister had not made a jurisdictional error by failing to consider specific factors or by acting on a mistaken view of the national interest. The Minister had properly considered the nature and seriousness of Moli's criminal conduct, the risk of reoffending, and the expectations of the Australian community, all of which were relevant to the national interest considerations.

Consequently, the court found that the Minister's decision was not unreasonable, irrational, or illogical. The applicant's claims of jurisdictional error were rejected, and the application for judicial review was dismissed. The court ordered that the application be dismissed and that there be liberty to apply in relation to the costs of the application.

Orders

Orders of the court

1. The application is dismissed.

2. There be liberty to apply in relation to the costs of the application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Possibly, the emphasis upon exceptionality reflects the fact that the various 'national interest powers' conferred upon the Minister are to be exercised in the context of the whole of the Migration Act noting that the legislation has as its express object the regulation, in the national interest, of the circumstances in which people who are not citizens can enter, and remain in, Australia. Within that context, a provision that is introduced to confer an additional or special power upon a Minister personally to intervene in the national interest in a way that departs from the consequences that would otherwise flow from those provisions (themselves made in the national interest) may be seen as necessarily contemplating the need for exceptionality of circumstances. Otherwise, such provisions would confer a form of plenary power for the Minister, in the national interest, to take action that was unlimited by the detailed legislative scheme which is Parliament's expression of what is appropriate in that national interest. This is an aspect to which I will return after considering the relevant cases.Relevant High Court decisions as to the national interestPatterson The authorities concerning the personal powers of the Minister to refuse or cancel a visa if satisfied that such a course is in the national interest commence with Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391. It concerned the exercise of the power conferred by s 501(3) to cancel a visa. It was decided before s 501BA had been enacted. The High Court found that in making the visa cancellation decision in that case, the Parliamentary Secretary who made the decision had fallen into jurisdictional error. Five members of the High Court found that the error arose because the decision had been informed by an erroneous view that there would be an opportunity to seek a revocation of the decision when that was impossible on the facts. Only Kirby J and Gaudron J considered a separate ground to the effect that the decision had been infected by the absence of a jurisdictional fact, namely a lawfully formed state of satisfaction that cancellation was 'in the national interest'. As to that point, the reasons of Gaudron J at [78] emphasised that: 'The terms of s 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test' whilst also observing that the same matters may provide the foundation for the requisite satisfaction as to each of the pre-conditions. Her Honour gave the following example:It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community. Gaudron J also expressed the view that certain crimes, such as those which circumvent immigration laws, 'may be of such a nature as to found a satisfaction that it is in the national interest to cancel' a person's visa: at [79]. However, where the same conduct is relied upon for both pre-conditions 'there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned': at [80].

Ratio Decidendi

Legal Principle Established

Relevantly for present purposes, the Minister reasoned by the following steps:(1)The Minister described the nature of the power conferred by s 501BA (in terms that were not criticised by Mr Moli).(2)The Minister then said (para 7):I am aware that I have a discretion not to cancel the visa, even if I hold the relevant satisfaction regarding the character test and am satisfied about the national interest.(3)On the basis of a national criminal history check, the Minister was satisfied that Mr Moli did not pass the character test.(4)The Minister said that he had considered whether the cancellation of Mr Moli's visa was in the national interest (para 12).(5)The Minister noted that 'national interest' was not defined for the purposes of s 501BA and said that generally there had been a reluctance on the part of the courts to define the meaning of national interest in statutory contexts (para 13).(6)Next (para 14), the Minister referred to the statement in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] that: 'What is in the national interest is largely a political question' and then said:To the same effect, a number of Federal Court decisions hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction (provided that satisfaction is obtained reasonably).(7)The Minister immediately went on to say: 'I consider that matters of national interest include, amongst other things, the protection of the community and the expectations of the Australian community' (para 15).(8)The Minister then dealt with the topic of the protection of the community (paras 16‑52). The reasoning began by stating (para 16):In determining whether it is in the national interest to cancel Mr MOLI's visa, I have given the highest priority to the safety of the Australian community and the need to protect the Australian community. In doing so, I considered the seriousness of Mr MOLI's criminal conduct having regard to the circumstances and nature of the conduct, the likelihood of him reoffending, and the risk he poses to the Australian community if such a likelihood eventuated.Each of those matters were then considered.(9)As to risk to the community, the Minister concluded that there was 'a low, but not negligible likelihood that Mr MOLI will reoffend and note that should he engage in similar conduct again, it would be likely to result in serious psychological, physical harm and/or financial harm to members of the community' (para 51).(10)The Minister then addressed the expectations of the Australian community (paras 53‑55). The Minister reasoned to the effect that 'the Australian community, as a norm, expects the Government to not allow [a non-citizen who has engaged in serious conduct in breach of Australian laws] to enter or remain in Australia' (para 53). Further, that was so regardless of whether or not the non-citizen posed a measurable risk of causing physical harm (para 54). Those expectations were found to weigh significantly in support of cancellation (para 55).(11)I observe that language of that kind has been seen to express a governmental view of community expectations that is to be applied normatively (that is, as a standard that is expected to be observed): Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; (2024) 303 FCR 261 at [79]; applying FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454.(12)The Minister then reached the following conclusion on national interest (paras 56‑58):Conclusion on national interest considerationsIn deciding whether I am satisfied that it is in the national interest to cancel Mr MOLI's … visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.In the specific case of Mr MOLI, I have considered the nature and seriousness of his conduct and I have concluded it is serious. I have also considered the harm that would result if Mr MOLI were to reoffend. I have considered the likelihood of Mr MOLI reoffending and have found that there is a low, but not negligible likelihood that Mr MOLI will reoffend. I have also considered the expectations of the Australian community.Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr MOLI's … visa is in the national interest.(13)As to the Minister's conclusion, I observe that the final sentence was expressed in terms that indicate reasoning by adverting to and having in mind the matters there listed to reach a conclusion that the cancellation of Mr Moli's visa, in the specific case, was in the national interest. It is those listed matters that were said to 'inform the national interest'. They were (a) the nature and seriousness of Mr Moli's offending; (b) the harm that would result if Mr Moli was to reoffend; (c) the likelihood of Mr Moli reoffending; and (d) the expectations of the Australian community (earlier stated as an expectation that those who engage in serious conduct in breach of Australian laws should not be allowed by the government to remain in Australia regardless of whether they pose a measurable risk of physical harm).(14)Therefore, it appears that the Minister reasoned that because Mr Moli's conduct was 'serious' and there was a low but not negligible risk of reoffending with consequent serious harm to members of the community, and because of the governmental view that all those who had seriously breached Australian law would not be allowed to remain in Australia, the Minister was satisfied that it was in the national interest in Mr Moli's specific case for his visa to be cancelled.(15)The Minister (being satisfied in the manner explained above as to the two matters specified in s 501BA) then considered various matters that the Minister identified as bearing upon the discretion as to whether to exercise the power to cancel Mr Moli's visa (paras 59‑86).(16)The Minister then reasoned that in the exercise of the discretion the highest priority should be given to the safety of the Australian community and the need to protect its safety with the Minister then concluding that 'the considerations against cancellation are outweighed by the serious national interest considerations in this case' (paras 87‑97).The statutory context for s 501BA