Chukwuma v Minister for Immigration and Multicultural Affairs [2025] FCA 1302

1. Each of the grounds of review allege that the Assistant Minister's decision was legally unreasonable in the sense discussed by the High Court in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541.
2. The requirement to act within the bounds of legal reasonableness is an implied condition on the exercise of the power under s 501AB. As the High Court said in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (at [57]), "although broad and evaluative, [it] is not unbounded", and:

... the statutory discretion enlivened ... must in each case be exercised by the Minister 'according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself'.

(footnote omitted)

1. A conclusion that an administrative decision is affected by legal unreasonableness so as to amount to jurisdictional error may be reached either by reference to the outcome of the decision, or by reference to the reasoning process by which the decision was made: Graham (at [58]), XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115.
2. In exercising the power under s 501BA of the Act, the state of satisfaction as to what the national interest requires must be formed in accordance with the correct understanding of the law under which the decision is made: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22, Gageler and Keane JJ (at [33]); XKTK (at [24]). In Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 (at [61]), the Full Court emphasised the exceptional nature of the power and the degree of decisional freedom both in determining what is in the national interest and in identifying the factual matters that are relevant in the performance of that task. The same considerations apply to the exercise of the discretion to cancel a visa once satisfied that the essential conditions for the exercise of the power exist.
3. In cases where a decision-maker's process of reasoning is said to be affected by legal unreasonableness, this Court on judicial review should confine itself to the material before the decision-maker: XKTK, Wheelahan J (at [47); Stewart and Needham JJ (at [94]); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, Allsop CJ, Robertson and Mortimer JJ (at [47]).
4. The applicant contends that the decision is affected by legal unreasonableness in four particulars, considered under the headings below.

1. These particulars allege that in reaching his state of satisfaction that cancellation of the visa was in the national interest, the Assistant Minister acted unreasonably in the performance of his fact finding task.
2. In assessing the national interest, the Assistant Minister made findings about the likelihood of the applicant committing drug-related offences in the future. The Assistant Minister also considered the best interests of the applicant's minor child as factors relevant to the exercise of the power. Both findings were made against a background in which the applicant had spent about two years and four months in the community following the Tribunal's decision, before which he had spent (in accumulation) more than 11 years in prison or immigration detention.
3. As to the likelihood of re-offending, the Assistant Minister concluded that the "primary drivers" behind the applicant's past offending were financial in nature. He adopted the Tribunal's earlier findings that the applicant's lack of financial management skills had made him vulnerable to participate in crime. The Assistant Minister said that the risk of the applicant reoffending depended to a large extent on financial pressures in his life and his ability to resist engagement in unlawful enterprises to address them. He continued (Reasons, [51]):

This point has been largely untested for [the applicant] outside of the controlled environments of prison and immigration detention. Although he was released from detention following the [Tribunal's] decision and has not been subsequently convicted of further offending, this has been a relatively limited period, especially after spending such a lengthy period of time in prison/detention.

1. Under s 501BA of the Act, the Assistant Minister had a residual discretion as to whether or not to cancel the applicant's visa, even if satisfied that the essential conditions for the cancellation were met. In exercising that discretion, the Assistant Minister had regard to the best interests of the applicant's son. The Assistant Minister said that he was mindful that Article 3 of the United Nation's Convention on the Rights of the Child (to which Australia was a signatory) treated the best interests of any affected minor children in Australia as a significant consideration.
2. The Assistant Minister identified that the applicant's son was born on 15 October 2013. He said that it was probable that the applicant had resumed a direct parental relationship with his son since the Tribunal's decision "albeit still for a relatively limited period".
3. In each context, the applicant submitted that the description of his period of freedom in the community as being "relatively limited" had "no logical basis" and was lacking any "rational foundation" in the evidence. I do not accept that submission.
4. The Assistant Minister used the word "relative" in its ordinary comparative sense, when expressing an opinion about the two periods of time.
5. As to the underlying facts, the Reasons disclose a correct understanding of the periods of time spent by the applicant in prison and immigration detention. The total period of time spent in prison was more than 11 years, including a period of seven years and six months between February 2015 and August 2022. The Reasons also disclose an awareness that the Tribunal's decision (and the resulting release of the applicant into the community) had occurred nearly two years and four months prior to the Assistant Minister's decision. The Reasons also disclose an awareness of the date of birth and age of the applicant's son.
6. It was not legally unreasonable to describe the applicant's period of freedom as limited, relative to the period he had spent in the controlled environments of prison and immigration detention when considering the applicant's prospects of avoiding the temptation to resort to criminal offending to pay his debts. The description "relatively limited" is to be understood as informing the conclusion that the applicant's ability to resist engagement in unlawful enterprises to address his financial pressures had been "largely untested". The characterisation of the period of freedom as "relatively limited" was plainly open to the Assistant Minister to make, having regard to the context in which it was used.
7. Nor was it legally unreasonable to describe the period of the applicant's "direct parental relationship" as limited, relative to the period of the child's life during which the applicant had been incarcerated. The objective circumstances were that the period of two years and four months following the Tribunal's decision comprised less than a quarter of the child's life.
8. Neither finding is "seriously irrational, illogical or lacking material foundation in important aspects": SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463, Allsop CJ (at [40]). The impugned paragraphs in the Reasons are more properly described as evaluative opinions, founded upon objective and uncontroversial facts concerning the applicant's incarceration history. To succeed on a ground of review alleging legal unreasonableness, it is not sufficient to express strong disagreement with the decision. The question is not whether the Court would have characterised the periods of time in the same way. To dispose of these grounds, it is sufficient to find (as I have done) that, on the material before him, it was open to the Assistant Minister to describe the periods of time in the way that he did. No question of materiality arises.

1. The Assistant Minister had regard to the legal consequences of a decision to cancel the applicant's visa as a factor he considered to be relevant in the exercise of his discretion (Reasons, [100] - [115]). On that topic, he reasoned as follows:

(1) a consequence of exercise of the power was that the applicant would be a non-citizen;

(2) ordinarily the applicant would be liable to be detained in accordance with s 189 of the Act and removed from Australia in accordance with s 198 (Reasons, [100]);

(3) in accordance with the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137, where there is no real prospect that it will be practicable to remove a non-citizen in the reasonably foreseeable future, the non-citizen must be released from immigration detention (Reasons, [110]);

(4) the applicant was a person in respect of whom a "protection finding" had been made within the meaning of s 197C(3) of the Act and, accordingly, his removal from Australia to Liberia was neither required nor authorised (Reasons, [101], [108] - [109], [111]);

(5) the circumstances in which the applicant's removal from Australia was required "did not presently exist" (Reasons, [123]);

(6) accordingly, the applicant could only be removed to a third country (Reasons, [111]);

(7) there was "no real prospect" of the applicant being removed to a third country (Reasons, [111]);

(8) it followed that, in accordance with NZYQ, the applicant would not be subject to indefinite detention (Reasons, [111]);

(9) rather, upon the cancellation of the visa, the applicant would be released into the community (Reasons, [110]), initially as an unlawful-non-citizen and then as the holder of a temporary visa of a kind that the Assistant Minister would determine (Reasons, [112]);

(10) among other things, the practical implications for the applicant were that he would likely be unable to secure employment, however, he would not be subjected to an indefinite period of immigration detention, and he would not be separated from his son (Reasons, [88] - [89]); and

(11) the legal consequences described should be given "significant weight" in the exercise of the discretion (Reasons, [114]).

1. By particulars (c) and (d), the applicant contends that the Assistant Minister acted unreasonably in the exercise of the power because he proceeded from an incorrect understanding of the provisions of the Act as in force at the time that the decision was made when concluding that there was no real prospect of the applicant being removed to a third country.
2. Twelve days before the Assistant Minister's decision, amendments effected by the Migration Amendment Act 2024 (Cth) came into force, including the newly introduced s 198AHB. It provided:

198AHB Power to take action etc. in relation to third country reception arrangement

(1) This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

(2) The Commonwealth may do all or any of the following:

(a) take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(b) make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.

(3) To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(a) any other power or duty under this Act; or

(b) the executive power of the Commonwealth.

action includes action in a foreign country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.

1. The applicant submitted that in concluding that there was no real prospect that he would be removed to third country, the Assistant Minister made no reference at all to s 198AHB and the "legal framework" for which it provides. He submitted that if consideration had been given to s 198AHB, the Assistant Minister would have proceeded on a different factual foundation, namely that there was a real possibility of Australia entering into an arrangement with Nauru and hence a real prospect of the applicant being removed to Nauru in accordance with such an arrangement.
2. The likelihood of Australia entering into such an arrangement with Nauru was said to be supported by objective facts, being the same facts recently found by Moshinsky J in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540. They relate to negotiations between Australia and Nauru for an arrangement whereby certain unlawful non-citizens could be removed to Nauru as a third country under and for the purposes of the Act. Among other things, they include:

(1) between September 2024 and January 2025, a number of meetings took place between representatives of Australia and Nauru at which the potential for resettling a "cohort" of persons affected by the decision in NZYQ was discussed, including a meeting on 31 January 2025 between the Australian Minister for Home Affairs (not being the Assistant Minister) and the President of Nauru;

(2) a letter of 31 January 2025 confirmed that Cabinet authority had been provided for negotiations to proceed in order to finalise a formal settlement and funding arrangement;

(3) in that letter, it was proposed that officials from both countries work to consider the initial settlement of three individuals as "a first cohort" and to that end Australia sought Nauru's agreement to an interim third country reception arrangement as set out in an attachment to the letter; and

(4) in February 2025, information concerning three individuals was exchanged and an interim third country reception arrangement was agreed in respect of that "first cohort".

1. In TCXM, Moshinsky J concluded that the exchange of letters constituted an "agreement or arrangement" (albeit an interim one) limited to three people, including the applicant in the case before him (at [50]).
2. In this matter, it is common ground that the applicant is not one of the three individuals included in the interim arrangement. Counsel for the Assistant Minister otherwise invited the Court to proceed on the same facts as found in TCXM, withdrawing an objection under s 91 of the Evidence Act 1995 (Cth).
3. The applicant submitted that on the TCXM facts, it was not open to conclude that there was no real prospect that it would be practicable to remove him to a third country in the reasonably foreseeable future. In oral submissions, the argument was advanced in alternative ways. At its highest, it was submitted that the Assistant Minister had "constructive knowledge" about the negotiations underway between Australia and Nauru at the time of his decision (17 December 2024) and ought to have concluded that there was some prospect of an arrangement being reached for the purposes of the newly enacted s 198AHB. Counsel for the applicant acknowledged that prior to the introduction of s 198AHB, nothing in the Act prohibited the removal to a third country of a person about whom a protection finding had been made or to whom Australia owed refoulement obligations. However, it was submitted, there had not previously been a statutory framework to facilitate those arrangements.
4. Alternatively, Counsel submitted that it was not necessary to show that the Assistant Minister had actual or "constructive knowledge" of the TCXM facts, because it was enough to show that the Assistant Minister had failed to have regard to the existence of the new framework established by s 198AHB. It was submitted that the newly enacted provision, in and of itself, precluded a finding that there was no real prospect that the applicant would be removed to a third country because it had established, for the first time, a legal framework under which his removal could be achieved.
5. Accordingly, it was submitted, the Assistant Minister had acted unreasonably by failing to assess the legal consequences of his decision upon a proper understanding of the Act, as amended.
6. I do not accept those submissions. The analysis that follows accords with the submissions made on behalf of the Assistant Minister, which I accept.
7. In accordance with NZYQ, whether or not there was a real prospect that it might be practicable to remove the applicant to a third country in the reasonably foreseeable future was a question to be answered by reference to the facts as they existed at the time of the Assistant Minister's decision and on the basis of the material then before him.
8. As at 17 December 2024, the objective facts went no further than the existence of discussions between the Minister for Home Affairs and the President of Nauru. Those discussions commenced in September 2024, before s 198AHB came into effect. The meetings between the Australian Minister for Home Affairs and the President of Nauru 31 January 2024 had not occurred at all. The discussions and correspondence in any event related to an initial "cohort" of unlawful non-citizens and the applicant was not among them. The objective facts (as they existed on the decision date) did not support, let alone require, a finding that there was a real prospect of the applicant being removed from Australia to Nauru in the reasonably foreseeable future.
9. More fundamentally, the applicant has not demonstrated that the Assistant Minister had actual knowledge of the TCXM facts at the time of his decision. To the extent that it was submitted that he had "constructive knowledge," the applicant did not point to any authority that might support such a finding, nor was it explained how a finding of "constructive knowledge" could bear on the ground of legal unreasonableness as articulated on the originating application. I am not satisfied that a decision under s 501AB could be affected by jurisdictional error by reason of a failure to have regard to facts not actually known to the decision-maker.
10. Nor do the Reasons otherwise reveal error as to the operation of the Act as it stood at the date of the Assistant Minister's decision. The Assistant Minister correctly summarised the provisions mandating the detention and removal of unlawful non-citizens and the effect of s 197C(3) in its application to the applicant. In addition, he correctly identified that there was no legal impediment to the removal of a person in the applicant's position to a third country and (again correctly) summarised the effect of the High Court's decision in NZYQ.
11. In addition, I do not accept that s 198AHB established, for the first time, a legal framework under which the removal of unlawful non-citizens to third countries could be undertaken. The provision opens with the words "if the Commonwealth enters into an arrangement" (emphasis added) and is expressed to operate without derogating from Executive powers. One such power is the power of the Executive to engage in relations with other countries in its non-statutory prerogative capacity (as discussed by Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 (at [178])). On its terms, s 198AHB did not derogate from powers that already existed to enter into arrangements with third parties to affect such removals. Nothing in the Reasons suggests ignorance on the part of the Assistant Minister concerning the existence of that Executive power.
12. The Reasons may fairly be interpreted to mean that the Assistant Minister concluded, on the material then before him, that there was no real prospect of the applicant being removed to Nauru under such an arrangement in the reasonably foreseeable future. The conclusion complained of is an essentially factual one, unaffected by an error of the kind contended for.
13. It follows that the application for judicial review must be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.