CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199

1. On 15 August 2018, the appellant's visa was cancelled under s 501(3A) of the Act.
2. On 4 April 2019, the appellant applied for a Protection (subclass 866) visa. On 18 July 2019, a delegate refused the visa application. The Tribunal purported to affirm that refusal on 28 October 2019, but its decision was quashed because it was affected by jurisdictional error.
3. On 15 August 2022, a delegate refused to revoke the cancellation of the appellant's visa. The appellant applied for review in the Tribunal. On 8 November 2022, the Tribunal purported to set aside the delegate's decision. The Tribunal's decision was quashed by the Full Federal Court, and the matter was remitted to the Tribunal for reconsideration. On 13 November 2023, the Tribunal (again) set aside the delegate's decision and revoked the cancellation of the appellant's visa.
4. At that time, the appellant's application for review of the protection visa refusal remained pending before the Tribunal. In May 2024, six months after his visa was restored, the appellant withdrew that application; as a result, the Tribunal determined that it did not have jurisdiction to review the delegate's decision.
5. On 2 July 2024, the Minister's Decision was made.
6. On 14 May 2025, the primary judge dismissed the appellant's application for judicial review of that decision.

1. By Ground 1A the appellant contends that the primary judge erred by failing to find that the Minister's reasoning in affording no weight to the legal consequences of the Minister's Decision was unreasonable, illogical or irrational.
2. The primary judge set out the relevant parts of the Minister's Decision at PJ [23] before addressing the appellant's relevant grounds of review at PJ [25]-[60]. The appellant's central complaint related to the Minister's Decision at MD [80], where after considering the "legal consequences of the decision" at MD [69]-[79], the Minister concluded that:

Pending any future full assessment of relevant claims by [the appellant], I have not given this consideration weight in my consideration of visa cancellation under s501BA.

1. The appellant submits that the primary judge erred by failing to find that, in giving the legal consequences of the Decision no weight, the Minister had failed to "grapple with the direct legal consequences of the decision to cancel the visa" in circumstances where there was evidence before the Minister about the deleterious impact of detention on the appellant's health including evidence from a forensic psychiatrist, Dr Stephen Allnutt. The appellant submits that, faced with this evidence, it was "unreasonable, illogical and irrational" for the Minister to conclude that no weight should be given to the fact that the appellant would be liable to detention as a legal consequence of the Decision. The appellant submitted that:

(a) every period of prospective detention under s 189 of the Act is of unknown duration as the Minister cannot know for certain exactly how and when a person's detention will end;

(b) the fact a decision-maker does not know precisely how long detention will last does not mitigate the fact that a person will be detained, or eliminate the need to consider that detention as a legal consequence of the decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]-[9] (Allsop CJ and Katzmann J); WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 at [123] (Kenny and Mortimer JJ);

(c) in this case, "indefinite detention" flowed automatically, directly, and inevitably from the cancellation of the appellant's visa: citing BNGP v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [101] (Perry J, Bromwich and Kennet JJ agreeing); CRRN v Minister for Immigration and Multicultural Affairs Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [60] (Owens J);

(d) indefinite detention is, by its nature, "detention without a chronologically fixed endpoint", "dependent on the completion of various administrative and executive steps", such that "[t]he person concerned will have no accurate conception of when her or his detention might end": citing WKMZ at [132];

(e) in exercising a cancellation power, the Minister must consider "what is being done to people" (citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] (Allsop CJ)) which includes consideration of the practical realities in human terms of the legal consequences: citing CRRN at [60] and Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 at [107] (North J), [129] (Perry and Kenny JJ);

(f) it is inherently irrational to reason that the prospect of indefinite detention - with its attendant psychological harm - could be afforded no weight;

(g) the uncertainty and consequent psychological toll of indefinite detention demand the attribution of greater weight than would be attributed for a brief, fixed and knowable period of detention; and

(h) in circumstances where there was uncontradicted evidence that detention would perpetuate and aggravate the appellant's poor mental health (based on Dr Allnutt's report), the Minister could not reasonably, rationally or logically determine that uncertainty about duration meant detention could carry no weight in his assessment.

1. In response to these submissions, the Minister submitted that he was under no obligation to have regard to or consider "any particular factual issues" including the adverse impact upon on an unlawful non-citizen from being taken into immigration detention: citing Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ). Relatedly, the Minister submitted that he could not engage in jurisdictional error in evaluating and giving consideration to a matter that he was not mandatorily bound to take into account, and any such error would be within jurisdiction: citing Snedden v Minister for Justice [2014] FCAFC 82; 230 FCR 82 at [153], [163] (Middleton and Wigney JJ), [242] (Pagone J); HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133; 294 FCR 13 at [72] (Yates, Abraham and McElwaine JJ). The Minister further submitted that, in giving consideration to the legal consequences of the decision, the Minister was only required to have regard to the direct and immediate statutorily prescribed consequences arising from the framework of the Act and not any indirect consequences such as those relating to the appellant's health: noting that the correctness of the decision in Hands has been apparently doubted in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [34], fn 78 (Kiefel CJ, Keane, Gordon and Steward JJ). It was submitted that the relevant legal consequences were those that were direct, inevitable, and certain, and did not extend to those that were speculative: BNGP at [101].
2. However, the Minister accepted that, in acting pursuant to s 501BA(2), as with any statutory power, the Minister must reach that state of satisfaction, and exercise his discretion, reasonably: citing Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). Further, during the Minister's oral submissions, it was submitted that the Court could determine Ground 1A of the appeal "on the premise that the Minister was under a duty to have regard to the legal consequences of his decision in exercising the power" under s 501BA, but the Minister emphasised that he was not conceding that or any other point raised in his written and oral submissions: T34.8-15.
3. During the course of oral submissions, a dispute arose between the parties as to the extent to which authorities of this Court established whether the Minister had a duty to consider the legal consequences of the Decision: see Vargas at [61]; cf NBMZ at [8]-[9] (Allsop CJ and Katzmann J); Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ); AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 at [33] (Murphy, Stewart and McEvoy JJ); CRRN at [59]-[61] (Owens J). There was also a dispute between the parties as to the extent to which the consideration of the direct, inevitable and practical legal consequences of the Decision extended to considerations personal to the appellant's health and whether a failure to consider such matters would be an error within jurisdiction. As to the former point: see Cotterill at [107] (North J), [129]-[132] (Kenny and Perry JJ); Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [39] (Rangiah J); Hands at [3]; cf Plaintiff M1 at [35], fn 79. As to the latter point: see Nystrom at [7], [42] (Gummow and Hayne JJ); Snedden at [147], [153] (Middleton and Wigney JJ).
4. In light of the conclusions we have reached, it is unnecessary to decide these issues. We have approached the determination of the appeal on the basis that we need only determine those issues which we consider to be dispositive of it: Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ) and [101] (Bell, Nettle, Gordon and Edelman JJ); Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560 at [76] (Gageler J); Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227; 115 NSWLR 489 at [83] (Bell CJ, Leeming and Mitchelmore JJA).
5. Commencing with the power, s 501BA of the Act is expressed in the following terms:

501BA Cancellation of visa - setting aside and substitution of non‑adverse decision under section 501CA

(1) This section applies if:

(a) a delegate of the Minister; or

(b) the ART;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister - natural justice does not apply

(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(b) the Minister is satisfied that the cancellation is in the national interest.

(3) The rules of natural justice do not apply to a decision under subsection (2).

Minister's exercise of power

(4) The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable by application under Part 5

(5) A decision under subsection (2) is not reviewable by application under Part 5.

Note: For notification of decisions under subsection (2), see section 501G.

1. As is plain in s 501BA(2), the Minister may set aside a decision made under s 501CA and cancel a person's visa if satisfied that the person does not pass the character test and that the cancellation is in the national interest. This power has been described as an "override power": see Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; 294 FCR 270 at [10] (Mortimer J (as her Honour then was)).
2. It was not in issue that the appellant did not pass the character test for the purposes of s 501BA(2)(a).
3. It was common ground that the Minister's assessment and evaluation of the "national interest" is largely a "political question": Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). It involves a broad and evaluative assessment such that the matters that the Minister may take into account are largely matters for the Minister to determine: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [156]-[157] (Griffiths, White and Bromwich JJ); Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [89] (French, O'Loughlin and Whitlam JJ); Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [74] (Kiefel and Bennett JJ).
4. Putting to one side whether the Minister had a duty to consider the legal consequences of the Decision, the fact is that the Minister did so in reaching an ultimate state of satisfaction as to whether the cancellation of the applicant's visa would be in the national interest. As noted above, the Minister accepted that the exercise of a power under s 501BA is conditioned by a requirement that it be exercised reasonably: Tereva at [20] (Mortimer J), [86] (Thomas J); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J); Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 36 (Brennan CJ).
5. The threshold for establishing legal unreasonableness is high and it is not a finding lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] (Allsop CJ, Besanko and O'Callaghan JJ). As has been observed, "the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it": Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] (Crennan and Bell JJ).
6. Further, in assessing the unreasonableness or illogicality of the Decision, it is necessary to bear in mind the decisional freedom afforded to the Minister in determining the weight to be attached to various considerations which are considered relevant to the national interest, or in the exercise of his discretion. The Minister's determination not to give weight (either for or against visa cancellation) to the legal consequences of the Decision may not be unreasonable, illogical or irrational, even if others may regard the determination to be harsh: RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [36] (Nicholas, Yates and Burley JJ).
7. We are not satisfied that the primary judge erred in concluding that it was not unreasonable, illogical or irrational to give no weight to the legal consequences of the Decision. As the primary judge pointed out in her methodical analysis of the Minister's reasons, the Minister was plainly aware that, by reason of ss 189 and 198 of the Act, the inevitable and direct legal consequence of the Decision was that the applicant would become an unlawful citizen who would be liable for immediate removal and, in the meantime, detention. However, as the primary judge also emphasised, the Minister was conscious that there were a number of permutations that could arise which meant that it was not known how long the appellant would remain in detention. As to these matters, the primary judge reasoned as follows:
   1. ...the Minister considered (and did not defer considering) the inevitable and direct legal consequences of his decision (as opposed to consequences which were merely probable or arguable) as required: per Jagot J at [51] in BNGP v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 878 and endorsed at [101] per Perry J in BNGP v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 on appeal.
   2. As is evident from the relevant extracted portion of the Minister's reasons above, the Minister, in 11 paragraphs considered, the relevant portions of the Act and their operation, by virtue of the applicant's particular circumstances, in making a decision, namely what Parliament has prescribed to be the legal consequences of the Minister's decision under s 501BA. Commencing at M[69], the Minister accounted for the combined effect of ss 189 and 198, that unlawful non-citizens must be removed from Australia and in the meantime until removed, unlawful non-citizens are liable to detention. The same legal consequence is acknowledged later at M[74]. This reasoning crystallises the direct and the inevitable legal consequences of making a decision under to cancel the applicant's visa, namely the applicant will be taken into immigration detention and removed from Australia under of the Act as soon as reasonably practicable. The Minister came to this conclusion, by reason of the applicant, not being able to avail himself of a protection from removal, by operation of because no such "protection finding" had been made: M[70]-[72], [76].

...

1. The Minister's reasoning exposes that the Minister was aware that (a) the applicant's protection claims had been assessed (at M[73]); (b) no "protection finding" (within the meaning of s 197C(3) of the Act) had been made (at M[76]); and (c) s 48A of the Act would prevent the applicant from making a further protection visa application subject to the Minister lifting the bar by exercising his power in s 48B (at M[75]-[76]). The Minister considered these matters because they bore upon one of the direct consequences of the Minister's decision, namely removal from Australia: If the applicant were covered by a protection finding, then removal, of course, could not be effected in respect of the country to which that protection finding related.

...

1. The Minister then considered, (at M[75]-[79]), whether the applicant could apply for another visa and the impact that another visa application might have on him referring to the statutory bar in s 48A which precluded the applicant from making a further protection visa application unless the bar were lifted by the Minister under s 48B to permit another application to be made. At M[77], the Minister reasoned that if the applicant were permitted by the Minister to make another protection visa application, then he would not be liable to be removed while that application is being considered. What follows thereafter, in M[77], M[78] and M[79], concerned what would happen if another protection visa application were made, and the Minister made a protection finding in the applicant's favour, and, giving effect to the reasoning in NZYQ, the applicant would be released from detention.

2. The applicant further submitted that the Minister's conclusion that "Pending any future full assessment of relevant claims by [the applicant], I have not given this consideration weight in my consideration of visa cancellation under s 501BA" is indicative of the Minister deferring consideration of the applicant's protection claims.

3. I do not accept this is how the Minister's reasons should be read. When read fairly and in the context of the preceding reasoning at M[69]-[79], "no weight" was given to this consideration namely the legal consequences of the decision. This is so because it was clear that the Minister was aware that the applicant would remain in detention until removed and it was not known at that time for how long. Further, it was not known (by virtue of the possible actions contemplated in M[77] and M[78]) whether the applicant would make a request under section 48B, whether the Minister would allow such a request to be made, when any protection visa application would be decided, and what the outcome of such a process might be.

(Emphasis added.)

1. The primary judge's analysis of the Minister's Decision was, in our view, correct.
2. Contrary to the appellant's submissions, we do not accept that that it is apposite to characterise the position as one where the appellant would be subject to a period of "indefinite detention". Rather, the position was that the appellant would remain in detention, until removed. What was unknown was how long that period would last including in light of steps the applicant might take to press his protection claims subject to s 48 of the Act. Further, the non-statutory language of "indefinite detention" must be viewed in light of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37; 280 CLR 137 at [55] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ), such that detention of a non-citizen will not be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future.
3. More relevantly, the question that arose was whether, in circumstances where it was unknown how long the appellant would remain in detention, it was unreasonable, illogical or irrational for the Minister to give that factor no weight. As to that matter, we discern no error in the primary judge's reasoning that due to the number of uncertainties there was no error in the Minister attributing no weight to that factor. As the primary judge correctly explained at PJ [58]:

As already reasoned above, the Minister did not place weight on this consideration given the extent of the unknown. The Minister reasoned, at M[73]-[79], as submitted by Counsel for the Minister which I accept, that the Minister should be understood to be saying that the applicant's being taken into immigration detention under s 189 of the Act was a neutral factor because it was not known whether and when there would be "any future full assessment of relevant claims", which in turn would affect the length of any detention. That is, it was not known (a) whether there would be any request under s 48B; (b) whether there would be any favourable exercise of power under s 48B; (c) whether a valid application for a protection visa would be made; and (d) when any such application would be finally determined. It was therefore entirely a matter of speculation (as at the date of the Minister's decision) as to how long the applicant would be held in immigration detention. Given the length of detention was uncertain as a consequence of the uncertainty surrounding the timing of (a) to (d), there was no error in the [Minister] not attributing any specific weight to that factor.

1. Nor do we accept that the Minister did not in a more general way have regard to or take into account Dr Allnutt's report or the evidence as to the difficulties the appellant had encountered over time with his mental health: MD [40], [43], [82], [85], [89] and [90]. It is plain that the Minister had read and was aware of the contents of Dr Allnutt's report. At MD [82], the Minister observed that the appellant had identified "significant adverse mental and physical health issues" including being "diagnosed with Major Depressive Disorder". The Minister further observed at MD [43] that the appellant had received treatment for his mental health whilst in "immigration detention and reports confirm that he requires treatment and monitoring". And, the Minister specifically referred to Dr Allnutt's opinion at MD [85] in relation to the deterioration of the appellant's mental health and the difficulties he would have in re-establishing himself in Portugal. In other words, the Minister was plainly aware of the appellant's mental health issues, that they were the subject of treatment and monitoring whilst he was in detention, and that they would deteriorate. These are matters that the Minister plainly took into account as part of the broad evaluative assessment of the national interest and the countervailing interests of the appellant.
2. In light of those matters, we discern no error in the primary judge's conclusion that it was not unreasonable, illogical or irrational for the Minister to give no weight to the legal consequences of the Decision. Accordingly, Ground 1A should be dismissed.

1. By this Ground, the appellant submits that the primary judge denied the appellant procedural fairness by not referring to "relevant evidence regarding the practical impact of detention on the appellant". The appellant appropriately conceded that, even if error was established, it would not "provide a basis for quashing the Minister's decision". Nor did the appellant seek remittal to the primary judge. Rather, the appellant submitted that, if this error was established, the Court would in re-hearing the matter have regard to the evidence in deciding whether the Minister's Decision was irrational, illogical or unreasonable for the reasons advanced in support of Ground 1A.
2. The appellant submitted that, at first instance, Counsel for the appellant had referred extensively to the relevant evidence regarding the practical impact of detention on the appellant, but the primary judge did not refer to any of this evidence in her Honour's determination of the appellant's grounds of review. The appellant contends that his argument before the primary judge was "not simply that it was unreasonable, illogical or irrational to afford no weight to the prospect of detention as a factor in itself; it was that it was unreasonable, illogical or irrational in light of the extensive material before the Minister about the impact of that detention upon the appellant". The appellant submits that by simply relying upon "the extent of the unknown", the primary judge did not respond to or consider the argument as advanced, including the significance of this evidence as part of that argument.
3. The relevant evidence to which the primary judge's attention was drawn related to the appellant's mental health, its deterioration in detention, and the fact that these matters were drawn to the relevant delegate's attention through the visa cancellation proceedings. It included materials such as letters to the relevant Department, the report of Dr Allnutt, and apparently some 1,400 pages of "IHMS records" contained in the "court book": T28.24-30.16. As to the latter, Counsel for the appellant had indicated that he did not wish to traverse all the "IHMS records", but when told by the primary judge that her Honour would only have regard to the materials to which her attention was drawn, Counsel for the appellant ultimately took her Honour to some of that material but also indicated that he did not "want to waste the court's time": T30.45.
4. Ground 1B assumes the premise that, if the primary judge did not refer to every item of evidence in her reasons, it follows that we would reach a different outcome on the appeal. That premise is unsound. The evidence that was drawn to the primary judge's attention was relied upon in support of the contention that the Minister's decision was unreasonable, illogical or irrational in light of the appellant's mental health issues. However, as we have noted above, the Minister did have regard to the appellant's mental health issues. We are not otherwise satisfied that the primary judge erred in concluding that the Minister's Decision was not unreasonable, illogical or irrational. Accordingly, Ground 1B is without substance and should be dismissed.

1. The substance of the appellant's contention in support of Ground 2 is that the Minister had "deferred" consideration of the appellant's "protection claims" and the primary judge erred by not finding that to be the case.
2. In support of this contention, the appellant relied upon four matters that were said to support a finding that the Minister had deferred consideration of the appellant's "protection claims". First, it was submitted that as the Minister acknowledged the appellant was barred by s 48A from applying for another protection visa, there was no reason to assume that the appellant's claims for protection would ever be assessed or reviewed again. Second, the appellant submitted that there had never been a valid merits review of his protection claims in light of the fact that (a) the initial decision made by the delegate of the Minister to refuse his protection visa application had been quashed, and (b) the appellant's second review application had been withdrawn in light of the revocation of the decision to cancel his visa. Third, it was submitted that by the time of the Minister's decision, the initial decision made by the delegate to refuse his protection visa application was five years old. Fourth, it was submitted that the Minister had expressly acknowledged that no protection finding existed and that s 197C(3) of the Act would therefore not prevent the applicant's removal, and that this underscored that the Minister was aware that the appellant faced removal to a country where he claimed to face a real chance of persecution or a real risk of significant harm.
3. We do not accept these arguments. They proceed on the premise that the Minister had "deferred" consideration of the appellant's protection claims. We do not agree with that characterisation of the Minister's Decision. As the primary judge correctly found, a fair reading of the Minister's Decision is that it was made in circumstances where (a) the appellant had made protection claims, (b) there had been no protection findings, and (c) the appellant had subsequently withdrawn his application for a protection visa. In those circumstances, the Minister adverted to the fact that, whilst not the subject of protection findings, the appellant had made protection claims and held fears of persecution in Portugal (MD [90]) and that s 48A of the Act presented significant restrictions on his ability to apply for another visa (MD [75]). To the extent that the Minister was required to take into account Australia's non-refoulement obligations, this requirement was limited to those obligations which arose by reason of municipal law: Plaintiff M1 at [20] (Kiefel CJ, Keane, Gordon and Steward JJ; Gageler J agreeing at [43]); BNGP at [130] (Perry J), [142]-[143], [152] (Bromwich and Kennett JJ). The appellant accepted this to be the case: T54.9-12. As there was no extant application for a protection visa, and there were no protection findings that had been made, the Minister was not "deferring" consideration of the appellant's claims as there was nothing to defer. Instead, the Minister was acknowledging that the appellant had made protection claims and might make another application for a protection visa within the limits that were applicable under the Act, but these would need to be assessed in the future, when and if such claims were in fact made. This was the force of the primary judge's reasoning and conclusions at PJ [53]-[54]. We are not satisfied that her Honour erred as alleged by the appellant.
4. Accordingly, Ground 2 should be dismissed.

1. By Ground 3, the appellant contends that the primary judge erred in failing to find that the Minister's findings as to "recent risk assessments" and limited rehabilitation were unreasonable, illogical or irrational.
2. In support of this ground, the appellant accepts that the Minister is not required to afford procedural fairness to a visa holder in exercising power under s 501BA and that the statutory scheme "contemplates that a decision may be made on the basis of a less than complete picture", including potentially relying on material which is "stale". However, the appellant submits that, if the Minister does decide not to afford procedural fairness, an "absence or gap" in the evidence before the Minister "may limit the reasoning processes that are reasonably open to the Minister". The appellant relied upon the decision of Bennett J in GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 where her Honour considered, amongst other things, whether it was open to the Minister to make a finding as to a current or persisting state of affairs in the absence of evidence. Her Honour stated (at [42]):

In this case, the Minister did not have up-to-date information before him. This case does not concern inferences arising from the 10-month-old evidence: it concerns a conclusion by the Minister that a certain factual situation persisted, without considering whether the age of the evidence made it safe to so conclude. Put another way, the Applicant argued that the Minister proceeded on the basis that the information was up to date, when it was not. This is distinct from the Minister proceeding on the basis of information which he knows to have been accurate at an earlier point in time, but has chosen not to update.

1. The appellant's first complaint focuses on MD [41], where the Minister stated:

[The appellant] has previously engaged in rehabilitation related to his drug and alcohol use while incarcerated in 2009 and 2010, including engaging with counsellors and detoxing Attachments C, E and J. [The Appellant] also engaged with his General Practitioner and a Clinical Psychologist following his release from immigration detention Attachment P. It is however of concern that it was accepted on behalf of [the Appellant] in 2018 that he was still 'susceptible' to relapse, he reported intermittent illicit drug use whilst in immigration detention and no recent risk assessments are available Attachments C, E and J.

(Emphasis and additional emphasis added.)

1. The appellant submitted that the primary judge erred by finding at PJ [74] that the reference to there being "no recent risk assessments" was a "statement of fact". The appellant submits that when the paragraph is read as a whole, the lack of recent assessments was treated as an adverse factor that formed part of the basis for the Minister's present concern about the appellant's rehabilitation. It was submitted that the Minister "could not reasonably, rationally or logically treat the lack of recent risk assessments as a factor adverse to the appellant when [the appellant] had not been notified of the prospect of a s 501BA decision" or being provided with any opportunity to obtain or provide recent risk assessments.
2. The appellant's second complaint focuses on MD [42] and [47], where the Minister stated:

[The appellant] also participated in rehabilitation while incarcerated in relation to the sexual assault without intercourse offence. However, as the AAT did, I consider it serious that he appears to have historically demonstrated, and continues to demonstrate a lack of acceptance, a high level of denial and limited empathy for the victim Attachment B, E and F.

...

A number of factors, as outlined above, may have contributed to [the applicant's] offending behaviour. I however remain concerned that [the appellant] is not rehabilitated. [The appellant] has a history of repeat offending and has engaged in limited rehabilitation. I have found that on balance there remains a low to moderate ongoing risk that [the appellant] will reoffend.

(Emphasis added.)

1. The appellant submitted that, as in GRCF, the Minister's findings could "only be interpreted as a purported assessment of the appellant's attitudes and rehabilitation at the time of the Minister's decision, in circumstances where the latest evidence on that matter was eight months old". It was submitted that there was a critical distinction between the Minister relying on historical material (which is permissible) and the Minister making current assessments based on outdated evidence without acknowledging the temporal gap or its potential significance.
2. In determining Ground 3, we do not consider any assistance can be drawn from the decision in GRCF. That is because the factual context in which the Minister made the Decision in the present case was different. It is necessary to have regard to the factual context, which is precisely what the primary judge did at PJ [73]-[78]. There had been two instances of full merits review of the delegate's non-revocation decision: first, in November 2022, which was later quashed by the Full Court, and second, on 17 October 2023. Those merit review hearings occurred in the context of the delegate having made findings about the appellant's rehabilitation efforts: PJ [75]. For the purpose of those merits review hearings before the Tribunal, the appellant had the opportunity to lead evidence. In the latter review process, the Tribunal conducted an analysis by reference to the available material, including risk assessments from 2018 and earlier. As the primary judge observed, the Tribunal made findings to the effect that despite claims that the appellant had been rehabilitated, there was evidence that the appellant was "susceptible to relapse" and the Tribunal was "guarded regarding the long term efforts of the [applicant's] rehabilitation": PJ [76]-[77].
3. As to the first matter about which the appellant complaints, we agree with the primary judge's conclusion at PJ [74] that the Minister's finding that there were "no recent risk assessments...available" was no more than a statement of fact. As to the second matter, we also agree with the primary judge's conclusion at PJ [77] that, "when reading the Minister's reasoning, informed by the Tribunal's reasons" it is clear that "the Minister was echoing the Tribunal's sentiments, with some circumspection, regarding the applicant's susceptibility to relapse in the evidence that was before the Tribunal and the applicant's history". Thus, once regard is had to this context, the Minister's statements to the effect that the appellant continued to demonstrate a lack of acceptance and that the Minister remained concerned that the appellant had engaged in limited rehabilitation and that the risk of re-offending remained low to moderate were expressing a state of present concern based on the Tribunal's findings and the material before the Minister.
4. Ground 3 has not been made out.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry, Cheeseman and Shariff.