BQQ25 v Minister for Immigration and Citizenship [2025] FCA 1279

Blatch v Archer [1774] EngR 2; (1774) 98 ER 969

Boughey v The Queen (1986) 161 CLR 10

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

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335

Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836

DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209; (2018) 267 FCR 411

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

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; (2024) 305 FCR 26

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33

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

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

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Mason v Minister for Home Affairs [2020] FCA 1787

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133; (2021) 285 FCR 540

MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; (2020) 282 FCR 285

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

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378

Po'oi v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 258

Administrative and Constitutional Law and Human Rights

1. The name of the Respondent is amended to "Minister for Immigration and Citizenship".
2. The Respondent's decision made on 14 January 2025 is quashed.
3. The Applicant's application for a protection visa made on 30 January 2022 is remitted to the Respondent to be dealt with according to law.
4. The Respondent pay the Applicant's costs of the application, to be assessed if not agreed.

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

1. This is an application to review a decision by the Respondent (the Minister) made under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Applicant a protection visa. The Applicant presses three grounds of review:
   • Ground 1: The Minister constructively failed to consider a representation by the Applicant that she had engaged with mental health staff while in immigration detention, a representation that was supported by International Health and Medical Services (IHMS) records. The Applicant contends that these IHMS records were constructively before the Minister.
   • Ground 2: The Minister constructively failed to consider reports by a psychologist, Dr Hatzipetrou, who stated that the Applicant has a low risk of general recidivism. The Minister found that there was a "reasonable likelihood" of the Applicant re-offending, without providing any reasons for not preferring Dr Hatzipetrou's reports.
   • Ground 3: The time that the Minister stated he spent considering the Ministerial submission and attachments (42 minutes) was not long enough for him to have considered all the materials, as he claimed to have done, and therefore the decision was not, in law, made by him but by the person who drafted the statement of reasons.
2. For the following reasons, I accept that both Grounds 1 and 2 are made out. Although the Minister expressly referred to the representations raised by Grounds 1 and 2 in his reasons, the Minister did not give any explanation for not preferring these matters in making a contrary finding on the likelihood of re-offending. That absence of any explanation constituted a failure to consider the representations and associated material in accordance with law.
3. I reject Ground 3: the proper inference is that the Minister considered only the Ministerial submission and draft statement of reasons, which he could lawfully do when making the decision under s 501(1) of the Act. That consideration could be undertaken in 42 minutes.
4. The application is therefore allowed, and the Minister must pay the Applicant's costs. Her application for a protection visa is remitted to be dealt with according to law.

1. Arrival in Australia; application for visitor visa (Mar 2016, Sep 2017): The Applicant is a citizen of the United States. She first arrived in Australia in March 2016 on a visitor visa. She most recently entered Australia from New Zealand on a "work and holiday" visa in September 2016. On 22 September 2017, she applied for a further visitor visa onshore.
2. Conviction for dishonesty offences (Sep 2017): On 25 September 2017, the Applicant was sentenced in the Queensland Magistrates Court on a guilty plea for seven dishonesty offences, and was given a total effective sentence of 12 months, suspended for two years. This offending fell into three categories:
   • making false statements about her qualifications in connection with her employment at a company called Mediscribe;
   • providing a forged letter claiming that she could not return to the United States to attend court because of a medical condition; and
   • providing non-genuine "chargebacks" for purchases over the internet.
3. Application for partner visa (Sep 2017): On 29 September 2017, the Applicant applied for a partner visa.
4. Refusal of partner visa; refusal of bridging visa E (Apr 2018, Apr 2019): In April 2018, a delegate refused the application for a partner visa, on the basis that the delegate was not satisfied that she was in a de facto relationship with her partner. The Applicant sought merits review of that decision. On 19 July 2018, the Applicant applied for a bridging visa E. The application for a bridging visa E was refused on 12 April 2019 under s 501(1) of the Act. The Applicant sought merits review of that decision as well.
5. AAT sets aside refusal decisions (May, July 2019): On 8 May 2019, the former Administrative Appeals Tribunal (AAT) set aside the decision to refuse the Applicant a partner visa, and remitted the matter with a direction that she was in a de facto relationship with her partner. On 8 July 2019, the AAT set aside the decision to refuse the Applicant a bridging visa E, and remitted that matter with a direction that the s 501(1) discretion not be exercised.
6. In the latter AAT hearing, the Applicant relied on a report from Dr Hatzipetrou, a forensic psychologist, dated 6 December 2018 (the 2018 Hatzipetrou report). He concluded that the Applicant's risk of reoffending in general was likely to be low.
7. Partner visa refused under s 501(1) (Mar, Jun 2021): On 3 March 2021, a delegate of the Minister refused the application for a partner visa under s 501(1) of the Act. On 21 June 2021, the AAT affirmed that cancellation decision. Dr Hatzipetrou provided a further report dated 24 February 2020 (the 2020 Hatzipetrou report). That report concluded that the Applicant's risk of reoffending remained unchanged.
8. Application for protection visa refused by delegate (Jan, Mar 2022): On 30 January 2022, the Applicant applied for a protection visa. On 15 March 2022, a delegate of the Minister refused that application.
9. AAT finds that Applicant is a refugee (Feb 2023): On 23 February 2023, the AAT set aside the decision to refuse the Applicant a protection visa, and remitted the matter with a direction that the Applicant was a refugee within s 5H(1) of the Act.
10. The Applicant was released from immigration detention on 6 March 2023, on what appears to be a residence determination under s 197AB of the Act.
11. Minister refuses protection visa application under s 501(1) (Jan 2025): On 14 January 2025, the Minister decided to refuse the Applicant a protection visa, under s 501(1) of the Act. This is the decision under review. The Minister signed a Statement of Reasons dated 14 January 2025. The Decision Record and the Reasons both state that the total time taken in considering the Ministerial submission and attachments was 42 minutes.
12. Application for judicial review (Feb 2025, Aug 2025): On 18 February 2025, the Applicant applied to this Court for review of the Minister's decision. That application contains three grounds of review, set out below. On 27 August 2025, the Applicant filed an amended originating application, which sought to add a fourth ground. The Applicant does not press that fourth ground (it would appear, in the light of the decision in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378).

1. As noted, the Applicant relies on the three grounds of review contained in the original application for review.
2. Act s 501(1): The Minister's decision was made under s 501(1) of the Act, which provides that the Minister "may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test". It is not in dispute that the Applicant does not pass the character test in s 501(6)(a) of the Act, by reason of her convictions, and therefore the discretion in s 501(1) of the Act was engaged.

Grounds 1-2: Minister's reasoning on the Applicant's rehabilitation

1. Grounds 1 and 2 both concern the Minister's reasoning on the Applicant's rehabilitation, and it is convenient to consider them together.
   • Ground 1 contends that the Minister failed to consider the evidence and representations that the Applicant had engaged with mental health staff while she was in immigration detention. This ground focuses on the statement in Reasons [34] "I note [the Applicant]'s assertions that she engaged with a psychiatrist, psychologist and counsellor while she was in immigration detention" (emphasis added). The Applicant contends that the evidence and representations she provided went far beyond mere assertion: she provided a detailed representation on the matter, and stated that records of the IHMS (the health provider engaged by the Minister's Department for people in immigration detention) would be able to confirm this engagement.
   • Ground 2 contends that the Minister failed to consider the opinion of the forensic psychologist (Dr Hatzipetrou) that the Applicant was a low risk of re-offending. The Applicant contends that, although the Minister noted in Reasons [34] that Dr Hatzipetrou stated that the Applicant has a low risk of general recidivism, the Minister found in Reasons [42] that there was a "reasonable likelihood" that the Applicant will reoffend, without explaining why Dr Hatzipetrou's opinion should not be accepted.
2. Minister's Reasons: The Minister's consideration of the Applicant's remorse and rehabilitation formed part of an assessment of the risk to the Australian community (see Reasons [24]). That assessment of risk was in turn part of the Minister's consideration of protection of the Australian community (see Reasons [11]).
3. Remorse and rehabilitation: The Minister's reasons on remorse and rehabilitation are as follows (emphasis added, references to attachments removed):

32. In considering [the Applicant]'s remorse and rehabilitation, I have taken into account that in sentencing, acting Magistrate Walker accepted that [the Applicant] demonstrated remorse in relation to her criminal offending ... .

33. I have also taken into account [the Applicant]'s guilty pleas, restitution paid and asserted remorse in respect to her criminal offending. Furthermore, I note [the Applicant]'s continued assertions that others were involved in and responsible for her criminal offending, despite not evidence to support this assertion and in circumstances where she pleaded guilty to the offences ... .

34. I note [the Applicant]'s assertions that she engaged with a psychiatrist, psychologist and counsellor while she was in immigration detention. I further note [the Applicant]'s reference to a psychological assessment by Dr Hatzipetrou which states that she has a low risk of general recidivism ... .

35. I have taken into account the information in relation to [the Applicant]'s mental health and treatments as a result of her childhood trauma and exposure to domestic violence and her willingness to seek assistance in medical professionals.

36. I note [the Applicant] did not minimise the seriousness of her actions and provided evidence of mitigating circumstances during her interview with Dr Luke Hatzipetrou ... .

37. I have considered that [the Applicant] expressed genuine remorse for her actions and expressed empathy towards the complainants. [The Applicant] appeared to understand the consequences of her actions ... .

38. In addition, I note Magistrate Walker's comments that [the Applicant]'s remorse and unremarkable personal history, and that the offending behaviours appeared to be uncharacteristic acts as she had no previous criminal convictions ... .

39. I have had regard to [the Applicant]'s personal statement dated 19 August 2023 in which she acknowledged the poor choices she made in an attempt to run away as a result of her domestic violence, fear, anxiety and PTSD which resulted in her offending behaviour. However, she states that following years of therapy and work on herself, she is no longer the same woman who committed those offences ... .

1. Conclusions on risk to the community: The Minister then reached the following conclusions on risk to the community (emphasis added):

41. I have found that the nature of [the Applicant]'s conduct is serious. I have further found that her repeated dishonesty offences, including lying about being a trained medical professional, have the potential to cause significant harm, including financial harm, and detriment to members of the Australian community. It is concerning that [the Applicant] has demonstrated a repeated preparedness to behave dishonestly in the Australian community, including in attempting to pass herself off as a medical practitioner and falsely claiming to suffer from a serious medical condition for her own financial gain.

42. On balance, having regard to the repeated nature of her dishonesty offending, I consider there to be a reasonable likelihood that [the Applicant] will reoffend or further engage in serious conduct. I consider that, should [the Applicant] engage in similar conduct again it is likely to result in harm, including financial harm and detriment to members of the community. The Australian community is entitled to be protected from such criminal dishonesty. Accordingly, I have attributed this consideration significant weight in favour of a decision to refuse to grant [the Applicant] a visa.

43. The safety of the Australian community is the highest priority of the Australian Government, which is committed to protecting the community from harm resulting from criminal activity or other serious conduct by non-citizens.

1. Conclusion: The final part of the Reasons (headed "Conclusion") contains the following further statements about the risk to the Australian community. The Minister stated that he "ha[d] found that [the Applicant] represents a risk of harm to the Australian community which is unacceptable" (Reasons [82]). The Minister stated further:

87. [The Applicant] has engaged in serious offending that has caused detriment to the Australian community, and which I have found would likely cause harm, including financial harm, and further detriment were she to reoffend in the same or a similar manner. [The Applicant] began offending in Australia almost immediately after her arrival and repeatedly breached the Australian community's trust through the commission of numerous dishonesty offences.

88. I consider that where great harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable. I consider this to be so here.

1. Failure to consider representations and materials - general principles: The Minister was required to afford the Applicant procedural fairness before making the refusal decision under s 501(1). That means that the Applicant was to be given an opportunity to make representations and provide materials about why the Minister should not refuse the visa, which in turn carried with it an obligation on the Minister to consider those representations and that material (putting aside for the moment the issue of how much of that consideration was required to be done by the Minister personally). The s 501(1) refusal power is "closely analogous" to the s 501CA(4) power to decide whether to revoke the mandatory cancellation of a non-citizen's visa: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; (2024) 305 FCR 26 at [80] (McDonald J, with Katzmann and Dowling JJ agreeing). (The High Court dismissed an appeal from the Full Court's decision: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33.) Cases on the content of the obligation to consider representations under s 501CA(4) therefore provide guidance on the scope of the corresponding obligation under s 501(1).
2. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, a plurality of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) explained the content of the obligation to consider representations under s 501CA(4) as follows:
   • A decision-maker must "read, identify, understand and evaluate" the representations. The decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by the person: Plaintiff M1 at [24].
   • The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness, and will vary, among other things, according to the length, clarity and degree of relevance of the representations: Plaintiff M1 at [25].
   • Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach: Plaintiff M1 at [26].
   • However, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error: Plaintiff M1 at [27].
3. In ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8], the Full Court stated that, following Plaintiff M1, approaching the matter "on the basis that the Court enquires into the degree or quality of consideration in the reasoning" is likely to lead to error in the form of the Court usurping the function of the Minister. At the same time, the parties accepted that Plaintiff M1 does not mean that mere lip service is permitted. It is still the case that "[w]hat is required is the reality of consideration by the decision-maker": Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). Equally, it is still the case that a person affected by a decision should not be "left to guess" what role, if any, a matter has played in the exercise of discretion: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [49] (the Court).
4. Applicant's arguments (Grounds 1 and 2): It can be seen that the Reasons [34] refers to the Applicant's representation that she engaged with mental health professionals while she was in immigration detention, and refers to the statement in the 2018 Hatzipetrou report that the Applicant has a low risk of general recidivism. Accordingly, this is not a case where a representation or a piece of evidence is overlooked altogether.
5. Instead, the Applicant's real complaint is that the Minister gives no explanation for rejecting this representation and the report, when making the finding in Reasons [42] that the Minister considered there was a reasonable likelihood that the Applicant would reoffend. The only factor cited in support of that finding is the "repeated nature of [the Applicant's] dishonesty offending". That factor was present at the time of the 2018 Hatzipetrou report, and the Applicant's engagement with mental health professionals while in immigration detention was being put forward as a reason why the risk of reoffending was now lower.
6. No explanation of why some evidence preferred over the other: The Applicant contends that the Minister has constructively failed to consider the representation and Dr Hatzipetrou's report. She contends that, having identified rehabilitation as a relevant matter, the Minister was required to make a finding about that matter. In doing so (it is said), the Minister must have regard to such evidentiary material that bore on that matter, and identify the weight to be given to that material, citing LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 at [46] (Charlesworth J). The Applicant contends that the Minister failed to engage with the evidence (namely, the material showing that the Applicant had engaged with mental health professionals in immigration detention, and the reports of Dr Hatzipetrou), citing FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [46] (Kenny J); MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; (2020) 282 FCR 285 at [33] (the Court).
7. The Applicant contends that this failure to identify the weight to be given to the representation, or the evidence, is indicative of a failure to give these matters the requisite consideration. She contends that the requisite consideration required an active process of weighing evidence and preferring some over the other, which in turn required some indication as to why that preference is given, citing FKP18 at [46] (in turn quoting Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [50] (the Court)).
8. IHMS records "constructively before" the Minister (Ground 1): A further issue arises with Ground 1, in that the Applicant did not provide the IHMS records to the Minister as part of her representations (although her representation stated that IHMS records would confirm her engagement with mental health practitioners while in immigration detention). The Applicant contends, however, that these IHMS records were constructively before the Minister, for two reasons:
   • These records were tendered in AAT proceedings to which the Minister was a party (citing LJTZ at [75]-[79]); or
   • IHMS is the health services provider engaged by the Minister's Department for people in immigration detention.
9. Engagement with mental health staff (Ground 1): Starting with Ground 1, I would not accept two subsidiary arguments of the Applicant's arguments on this ground.
10. Implicit that Minister accepted Applicant's "assertions": First, I would not place any great emphasis, by itself, on the reference in Reasons [34] to "assertions" by the Applicant. This word is unfortunate, because the Applicant's representation was more than a bare assertion, but was instead a "substantial and clearly articulated argument": cf Plaintiff M1 at [27]. However, when read in context, this statement can be read as the Minister accepting the substance of the Applicant's representation, that she engaged with a psychiatrist, psychologist and counsellor while she was in immigration detention. The Minister stated in Reasons [35] that he had taken into account the Applicant's "willingness to seek assistance in medical professionals". There was no reason for the Minister to doubt the Applicant's representation.
11. The real issue for the Minister was what weight should be given to this claimed engagement, and whether this engagement provided a reason (whether by itself or in combination with other matters) to find that the Applicant was now at a reduced risk of re-offending. The Minister does not explain why the repeated nature of the Applicant's offending outweighs her subsequent engagement with medical professionals. A similar issue arises with the Minister's treatment of Dr Hatzipetrou's reports, and this point will be considered then.
12. IHMS records do not affect the position: Second, the IHMS records do not, themselves, take the position any further. The Applicant stated that the Minister could "confirm with IHMS" her representation about her engagement with mental health staff (emphasis added). In other words, the IHMS records confirmed that the Applicant's representation was not mere assertion, but was a claim of substance.
13. This role of the IHMS records - to confirm or substantiate a representation already made - means that this case is quite different from the cases cited by the Applicant on the need to consider materials that are "constructively before" the Minister. In those cases, the error arose because the material actually before the Minister was incomplete or misleading, which made it necessary for the Minister to consider the other material that was constructively before him.
    • In LJTZ, the Minister made a finding that the applicant had not undertaken any rehabilitative efforts in relation to alcohol (LJTZ at [63]). However, the applicant's evidence and submissions to the AAT showed that he had already completed some courses, that he had obtained information about treatment in the community, and that he had committed to obtain counselling on his release from immigration detention (LJTZ at [72]). The Minister conceded that he had not considered the representations or material before the AAT (LJTZ at [36]).
    • In DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209; (2018) 267 FCR 411 (cited in LJTZ at [77]), the Minister was provided with a redacted version of an International Treaties Obligations Assessment (ITOA). The Full Court found that the redactions meant that this document was misleading. In relying on the redacted ITOA, the Assistant Minister acted not only on an incomplete account of the Reviewer's reasons and findings but also on a probable misapprehension of the Reviewer's reasons and findings: DHS17 at [48]-[50]. Reliance on this misleading document, when the complete document was in the constructive possession of the Department, amounted to jurisdictional error: see DHS17 at [62]-[63].
    • Similarly, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133; (2021) 285 FCR 540 (cited in LJTZ at [78]), the Minister did not have regard to a country information report in the constructive possession of the Department, which indicated that information contained in an Interpol Red Notice issued at the request of China was doubtful: ERY19 at [114]-[115]. That in turn meant that it was not reasonable for the Minister to rely on the Red Notice to conclude that the person had committed the stated offence and was a risk to the community: see at [115]-[116].
14. Given this factual difference, it is not necessary to determine whether the IHMS records were "constructively before" the Minister for the purposes of this decision. The Minister contends that LJTZ involved a particular set of facts, and should not be taken to establish a general principle that a Minister is required always to consider material that is in his constructive possession. The Minister contends further that the issue in the case of s 501(1) cancellations is not one of constructive possession, but whether these reports were "given" to the Minister within s 54(2) of the Act. The Minister notes that BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 at [302]- [303] (Bromwich J, with White J agreeing on this point) held that the code in Subdiv AB (code of procedure for dealing with visa applications) applies to decisions made under s 501. It is not necessary to resolve these issues.
15. Treatment of Dr Hatzipetrou's reports (Ground 2): Moving to Ground 2, the Minister referred in Reasons [34] to Dr Hatzipetrou's assessment that the Appellant "has a low risk of general recidivism", but then found in Reasons [42] that there was a "reasonable likelihood" that the Applicant would reoffend. As noted, the gist of the Applicant's complaint is that the Minister gave no explanation for not preferring Dr Hatzipetrou's opinion in making a less favourable finding.
16. Minister's finding on level of risk different, and higher, than Dr Hatzipetrou's: The Minister challenges the Applicant's contention that a "reasonable likelihood" of re-offending is a different, and higher, level of risk than a "low" risk.
    • The Minister contends that the finding in Reasons [42] either accepts, or is consistent with, Dr Hatzipetrou's report, because (it is said) the ordinary meaning of "likely" is to "convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent", quoting Boughey v The Queen (1986) 161 CLR 10 at 21 (Mason, Wilson and Deane JJ), and citing Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836 at 842 (Marks J). The Applicant, on the other hand, observes that sometimes a reference in Minister's reasons to "a likelihood" of reoffending has been interpreted as meaning re-offending is probable: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [57] (Mortimer J), [124] (Wheelahan J).
    • The Minister points out that the Reasons later state that the Applicant represents an "unacceptable" risk of harm, and that "any" risk of the great harm that could be inflicted in this case was unacceptable (Reasons [82], [88]). This is said to indicate that all that is meant in Reasons [42] is that there was a real chance of the Applicant re-offending.
    • The Minister also observes that Dr Hatzipetrou's opinion was that the Applicant was a low risk but that risk "cannot be considered negligible". The Minister contends that there could be at most only a subtle difference between a "real and not remote" risk (the Minister's finding) and a "low but not negligible risk" (Dr Hatzipetrou's finding).
17. I do not accept the Minister's arguments in this respect. The precise shades of meaning in terms such as "likelihood", "significant", "not negligible" and "low" will depend on context. Here, the context indicates that, whatever precise level of risk was meant by "reasonable likelihood" (which I would interpret as a substantial, real not remote risk), it was different, and higher, level of risk than was contained in Dr Hatzipetrou's opinion. The Reasons at [25]-[40] canvass a number of factors relevant to the risk of reoffending, some favourable for the Applicant (such as the two matters relied on here) and some unfavourable (such as the incidents of aggression in immigration detention: Reasons [40]). The Minister then states in Reasons [42] "[o]n balance, having regard to the repeated nature of her dishonesty offending", the Minister considered there was a reasonable likelihood of the Applicant re-offending. The natural reading of this statement is that the Minister preferred one factor (the repeated nature of the offending) over competing factors (such as Dr Hatzipetrou's report) that might indicate a lower risk of offending. This statement in Reasons [42] cannot fairly be read as the Minister agreeing with the substance of Dr Hatzipetrou's opinion.
18. It is true that the Minister's later reasoning turns to whether the level of risk is "acceptable", and the Minister finds that in this case any level of risk is unacceptable. However, these passages build on the level of risk found earlier in the Reasons. The statement in Reasons [88] (that any level of risk of the Applicant re-offending is unacceptable) does not excuse the Minister from the obligation to consider the representations as to the level of risk in accordance with law. Given the importance of rehabilitation to the central consideration of protection of the community, the Minister correctly does not argue that a failure to consider Dr Hatzipetrou's reports lawfully was not a material error: see generally LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
19. Was the Minister required to explain by he did not accept Dr Hatzipetrou's opinion? The issue becomes whether there has been a constructive failure to consider Dr Hatzipetrou's reports. As noted, the Minister does not give any explanation for not preferring the opinion expressed on those reports over the weight given by the Minister to the repeated nature of the Applicant's dishonesty offending.
20. The Applicant contends that lawful consideration of a matter requires that the decision-maker explain why one piece of competing evidence is preferred over another. Some of the cases cited by the Applicant are distinguishable, because in those cases the decision-maker had not referred to the competing material at all: see particularly LJTZ at [36], [86], [88] (it was unreasonable for the Minister not to have regard to information of a type that the Minister himself had determined was relevant); and MZYTS at [50] (the failure to include reasons for preferring one set of country information over another was an indication that the more recent country information had not been considered at all).
21. However, the Applicant's argument receives strong support from FKP18. In that case, the AAT recited some of the applicant's evidence about his good behaviour in immigration detention, but later concluded that, "[d]espite his assertions about his progress while in immigration detention, there is no persuasive evidence to suggest that he has rehabilitated properly" (see FKP18 at [41], [42]). Kenny J stated that, in describing this evidence as mere "assertion" and in failing to explain specifically why this unchallenged evidence was not persuasive, the AAT "failed to engage with the applicant's claim that his conduct in immigration detention was a significant factor weighing against the risk of recidivism" (FKP18 at [46], citing MZYTS at [50]). That reasoning applies here: the Minister does not explain why the two matters of substance put forward by the Applicant as reducing her risk of re-offending were not accepted. Instead, there is a statement of conclusion in Reasons [42] about the level of risk, without any explanation as to why contrary factors such as her subsequent engagement with mental health staff, or the opinion of Dr Hatzipetrou, were not preferred.
22. It is true that this reasoning in FKP18 is obiter dicta: Kenny J stated that it was unnecessary to reach any firm conclusion on this ground (FKP18 at [45]). Even so, her Honour's reasons are fully considered, and the Minister did not suggest that this reasoning had been overtaken by later cases.
23. Conclusions on Ground 1 and 2: As the Applicant submits, the Minister's reasoning on the Applicant's risk of re-offending is somewhat opaque: after listing the relevant factors for and against the Applicant, the Minister concludes that, "[o]n balance, having regard to the repeated nature of [the Applicant's] dishonesty offending", there is a reasonable likelihood of the Applicant re-offending. The Minister does not explain why this matter outweighs the matters relied on by the Applicant, such as the opinion of Dr Hatzipetrou.
24. In the circumstances of this case, I accept the Applicant's arguments that the Minister constructively failed to consider either the Applicant's claim that she had engaged with mental health staff while in immigration detention, or the opinion of Dr Hatzipetrou that she was a low risk of general recidivism.
    • It is true that the relevant representations by the Applicant were identified in the Reasons. This is not a case such as LJTZ, or MZYTS, when material was overlooked altogether.
    • I also accept that the weight to be given to different representations or material is a matter for the decision-maker: Plaintiff M1 at [24]. Further, the Minister was not constrained to accept the Applicant's representations.
    • However, the Minister does not give any explanation for not preferring two substantial representations. This lack of explanation constitutes a failure to engage with the Applicant's representations: FKP18 at [46]. The Applicant would be required to guess as to the place these factors played in the decision: see Lafu at [49]. There is mere lip service, and not the reality of consideration: see Maioha at [45].
    • This is not a complaint simply about the degree or quality of consideration (cf ECE21 at [8]), but an absence of consideration. There is a failure to "evaluate" the representations in accordance with law (cf Plaintiff M1 at [24]).

Ground 3: Whether Minister spent insufficient time making the decision

1. Ground 3 contends that the time that the Minister spent considering the Ministerial submission and attachments could not realistically have been sufficient for him to have personally considered all of that material, with the consequence that, at law, the decision was not made by the Minister personally but by the person who drafted the reasons.
2. Applicant's arguments (Ground 3): The Applicant contends that, if the Minister decides to make a decision under s 501(1) of the Act, then the decision must in fact be made by the Minister. That proposition must be accepted.
3. The question then becomes a question of fact about what process the Minister here actually followed. The Applicant draws attention to the following factual circumstances:
   • The Decision Record states that the following is the Minister's decision "having read and considered all of the material". A handwritten note on the Decision Record records that the total time taken in considering submission and attachments was 42 minutes.
   • The Reasons state at [1]: "In making my decision, I have had regard to the documents provided by the Department". The Reasons (on the signature page) record in a handwritten note that the total time taken in considering submission and attachments was 42 minutes.
   • The Ministerial submission (cleared on 19 December 2024) states at [7] that the Minister "should read and consider the representations in their entirety".
   • The Ministerial submission is five pages (of which the first two pages contain options, and the final page is a list of attachments and signature block). The briefing is 16 paragraphs. It does not summarise the representations made on behalf of the Applicant.
   • The Ministerial submission attached the decision page; index of relevant material; a draft statement of reasons (which is 12 pages); and the relevant material (such as the Applicant's criminal record, previous AAT decisions, and the Applicant's representations). The relevant material is over 400 pages.
4. The Applicant contends that the Minister's own statements are that he did read all the material before him (including the Applicant's representations): the Decision Record states that the Minister had read and considered "all of the material", consistent with the instruction in the Ministerial briefing that the Minister should read and consider the representations in their entirety. The Applicant then contends (and the Minister accepts) that the Minister could not have read all the relevant material (over 400 pages) in 42 minutes.
5. The Applicant contends that, in this situation, there has been an impermissible "de facto delegation" of power, relying on Splendido at [23](e) (Mortimer J) and Mason v Minister for Home Affairs [2020] FCA 1787 at [97] (Kenny J). The Applicant observes that the Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 found that 30 minutes was insufficient time for the Minister to bring an active intellectual process to 330 pages (in respect of Mr Taulahi), and that 7 minutes was insufficient time for the Minister to bring active intellectual process to 370 pages (in respect of Mr Carrascalao): see Carrascalao at [123], [128]. In Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335, Murphy and Rangiah JJ found that 11 minutes was insufficient time for the Minister to bring an active intellectual process to 130 pages: Chetcuti at [99].
6. How much material did the Minister consider? The critical issue with Ground 3 is to determine how much of the material before the Minister was actually considered by him.
   • As noted, the Applicant contends that (a) the Minister should be understood as having read all the materials before him, which (it is said) (b) could not have been done in 42 minutes.
   • The Minister, on the other hand, contends that (i) he should only be understood as having read the Ministerial briefing and the draft statement of reasons, which (it is said) (ii) could readily be done in 42 minutes by an experienced Minister.
7. I would accept each of step (b) in the Applicant's argument (and indeed the Minister concedes this much), and step (ii) in the Minister's argument. In doing so, I accept that the Court must be careful not to engage in merits review by forming views too readily on how much time is required to read a certain volume of material: Po'oi v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 258 at [51]- [52] (McElwaine J).
8. Permissible to read only the Ministerial submission and draft reasons: I note that the premise of the Minister's argument is that he could lawfully make a decision under s 501(1) of the Act on the basis of reading only the Ministerial submission and draft statement of reasons, and not the underlying material. For the following reasons, that premise is correct.
9. In Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594, the High Court held that it is not a condition of the valid exercise of the s 501CA(4) power for the Minister, when personally exercising that power, personally to read and examine the submissions, representations and other materials received in every case: at [33] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ). That conclusion would apply equally to the power in s 501(1), given the two powers are "closely analogous": Khalil at [80]. I note that the s 501(1) power, like the s 501CA(4) power considered in McQueen, is not one that can only be exercised by the Minister personally (cf s 501(3) or s 501BA).
10. The position would be different if the summary of the Applicant's representations in the submission or draft statement of reasons was inaccurate in a material respect: see McQueen at [28]. Here, the Applicant argues that the treatment of her representations is insufficient, for the reasons argued in Grounds 1 and 2. The Applicant also notes that the Ministerial submission and statement of reasons does not refer to the statement in the 2019 Tribunal decision that, since her time in immigration detention, the Applicant had made frequent online purchases without incident. I do not accept either of the Applicant's arguments.
    • Although I have upheld Ground 1 and 2, the difficulty is not in whether the relevant claims were sufficiently identified, but whether they were sufficiently considered. Those representations were sufficiently and accurately summarised in the Reasons, albeit that there was not sufficient consideration of those representations. Further, the IHMS material was not actually before the Minister, and was relied on by the Applicant only to confirm her claim that she had engaged with mental health staff in immigration detention. There was no requirement for this material to be independently summarised.
    • I accept the Minister's submission that it is not enough for the Applicant to point to things within the material that were not included in the summary. Although the plurality in McQueen states at [28] that the Minister may rely on a Departmental summary that "is accurate and contains a full account of the essential content", their Honours also state that a summary will, of necessity, edit the material received and cannot be expected to convey "the full sense and content" of that material: McQueen at [36]. In this case, the matter identified by the Applicant that is not referred to in the Ministerial submission and the Reasons (set out above) is a matter of "elaboration or further detail" of the Applicant's representation that she was a reduced risk of re-offending: see McQueen at [37].
11. For these reasons, there is no legal difficulty in this case with the Minister making his decision based only on reading the Ministerial submission and the draft statement of reasons. The question then becomes whether that is what the Minister has done, or whether the Minister should be understood as having attempted to read all of the materials before him (that is, the choice between step (a) or step (i) in [51] above). This is a question of fact, which involves taking into account the available evidence and reasonable inferences: Chetcuti at [56].
12. Infer that Minister only read the Ministerial submission and draft Reasons: In the circumstances of this case, I find that the Minister read at least the Ministerial submission and draft Reasons. The Ministerial submission set out a number of options, which were circled by the Minister. Option 3 was that, if the Minister decided to refuse the Applicant's visa application, "and [the Minister] agree[d] with the reasoning set out in the draft Statement of Reasons", the Minister sign the Reasons, with any amendments considered necessary. The Minister circled "signed" on the Ministerial submission, and signed and dated the draft statement of reasons.
13. There is no direct evidence showing that the Minister read more than the Ministerial submission and draft statement of reasons. But even assuming that this is all the Minister read, that does not establish invalidity: as just explained, the Minister could still lawfully make the decision, based only on reading the Ministerial submission and draft statement of reasons.
14. Contrary to the Applicant's arguments, I would not infer that the Minister attempted to read all of the materials.
    • The most important factor in drawing this inference is that the Minister recorded on both the Decision Record and the Reasons that the total time taken in considering the submission and attachments was 42 minutes. This factor distinguishes this case from Carrascalao and Chetcuti, where there was no such express statement.
    • This express statement of how long was taken informs and qualifies other statements, in particular the statement on the Decision Record that the Minister had "read and considered all of the material" (and also the statement in the Reasons that the Minister "had regard to the documents provided by the Department"). In McQueen, the High Court did not accept the accuracy of a statement in the reasons in that case that the Minister had considered the documents provided by Mr McQueen, without suggesting that this inaccuracy gave rise to jurisdictional error: McQueen at [7].
    • The general statement in the Ministerial submission that the Minister should read and consider the representations in their entirety does not require the contrary inference that the Minister did attempt to read all of the materials. It is a matter for the Minister to determine how to be satisfied that the discretion in s 501(1) should be exercised, and whether to read all the materials personally or to rely on the Department's summary of those materials: McQueen at [28]. The record of how long the Minister actually took strongly indicates that the Minister chose to rely on the Department's summary. The Ministerial submission does not request the Minister directly engage with a submission or other document (in which case the Minister would need to turn his or her mind to considering whether to undertake that task): cf McQueen at [25].
15. This last point is consistent with other decisions of this Court, which have stated that the Department cannot bind the Minister's exercise of a statutory power (meaning that a Departmental request that the Minister consider all the materials did not mean, by itself, that the Court should infer that the Minister had attempted personally to read all of those materials): Po'oi at [50]; Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [53] (Neskovcin J). I note that Po'oi and Ba both concerned decisions made under s 501BA of the Act, which (unlike s 501(1)) may be exercised without providing procedural fairness. However, the point just made is one of general application.
16. No other impermissible delegation: Finally, the Applicant contended that, even if the Court found that the Minister had read no more than the Ministerial brief and the Reasons, there was still an impermissible delegation of power, because there was some uncertainty as to what exactly had been considered by the Minister. The Applicant contended that there was only limited evidence on this topic, as a result of a forensic choice by the Minister not to provide any more information about the decision-making process. I do not accept this submission: there is evidence that the Minister read at least the Ministerial submission and statement of reasons (as explained above), and no reason to doubt that evidence. Further, even making the assumption most favourable to the Applicant that no other material was read, that would not render the decision unlawful. Ultimately, the Applicant bears the onus of proof, and the principle in Blatch v Archer [1774] EngR 2; (1774) 98 ER 969 (or Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) cannot be relied on to fill gaps in the evidence: EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [237] (Perry J).
17. Conclusions on Ground 3: For these reasons, I reject Ground 3: I infer that the Minister read at least the Ministerial submission and the draft Reasons, which could be done within 42 minutes. The Minister could lawfully base his decision on consideration of those materials alone. However, this conclusion (that the Minister's decision has not been shown to be unlawful) should not be taken as encouragement for Ministers to spend less than an hour to make a decision with such profound consequences for the person, noting that the Applicant in this case has been found to satisfy the definition of "refugee".

1. Grounds 1 and 2 of the application are made out. The Minister's cancellation decision must therefore be set aside, and the Applicant's application for a protection visa is remitted to be considered according to law. The Minister must pay the Applicant's costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.