Hood v Assistant Minister for Immigration [2025] FCA 1336

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

(ii) paragraph 501(6)(e); and

(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).

(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. The applicant's application for an extension of time and draft originating application were filed on 19 February 2025, 37 days after the expiry of the limitation period provided for in s 477A(1) of the Act. The extension of time was not opposed. I made an order under s 477A(2) at the hearing on 3 October 2025 extending the time for filing to the extent necessary to allow the originating application to be filed. Argument then proceeded on the substantive issues raised by the originating application.

1. The grounds set out in the originating application are as follows.
   1. The Respondent did not have power to cancel the Applicant's visa as after the transition time the power in section 501BA did not apply to decisions made by the Administrative Appeals Tribunal ('AAT').
   2. The Respondent did not have power to cancel the Applicant's visa as a reasonable time in which to make such a decision under section 501BA had expired.
   3. The Respondent did not have power to cancel the Applicant's visa as he or his predecessors had previously made a decision not to cancel the Applicant's visa at a time subsequent to when the AAT had made its decision.
   4. The decision to cancel the Applicant's visa was legally unreasonable as a reasonable time in which to make such a decision under section 501BA had expired.
2. Ground 3 was ultimately not pressed.

1. Until 14 October 2024, s 501BA(1)(b) referred to "the Administrative Appeals Tribunal" (AAT). The Administrative Review Tribunal Act 2024 (Cth), which established the Administrative Review Tribunal (ART), commenced on 14 October 2024. On the same date the Administrative Appeals Tribunal Act 1975 (Cth), which established the AAT, was repealed by item 1 of Schedule 17 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act). Item 290 of Schedule 2 to the Transitional Act replaced the reference to the AAT in s 501BA(1)(b) with the reference to the ART that currently appears. Schedule 2 also commenced on 14 October 2024.
2. Schedule 16 to the Transitional Act is headed "Transitional provisions". It deals with various matters including proceedings that were in progress in the AAT at the time of its replacement by the ART (which is defined in cl 1 as the "transition time"). Part 6 of Schedule 16 is headed "Other things done by, or in relation to, the AAT" and contains item 26, which is as follows.
   1. General rule

(1) The new law applies in relation to a thing done by, or in relation to, the AAT as if the thing had been done by, or in relation to, the ART.

(2) This item has effect subject to other items of this Schedule.

1. The "new law" is defined for these purposes as "the law of the Commonwealth as in force from time to time after the transition time".
2. Section 501BA in its current form is part of "the new law" as defined for the purposes of the "general rule" in item 26. The AAT decision in the present case was a "thing done by ... the AAT"; and no "other item" in Schedule 16 qualifies the "general rule" in this respect. The applicant submits that, nevertheless, s 501BA is confined in its terms to decisions made by the ART and does not have any operation in connection with a decision made by the AAT.
3. The applicant refers in this connection to s 351 of the Act which, like s 501BA, confers a power on the Minister to substitute a different decision for a decision of the ART. There is no obvious reason why s 351 is not caught by the "general rule" in item 26 of Schedule 16. However, the drafters of the Transition Act thought it appropriate to include in the same Schedule item 38, which provides:

The Minister may exercise a power conferred by section 351 of the Migration Act 1958 on or after the transition day in relation to a decision made by the AAT before the transition day under section 349 or 415 of that Act.

1. The applicant submits that item 38 would not be necessary if the general rule in item 26 applied so as to extend a power referable to an ART decision to a decision of the AAT. Implicitly, this argument invokes the principle that a statute should if possible be construed in a way that avoids surplusage (see eg Northern Land Council v Quall [2020] HCA 33; 271 CLR 394 at [61] (Kiefel CJ, Gageler and Keane JJ)). The difficulty, however, is that an alternative construction of item 26 in which it does not extend s 501BA to a decision of the AAT is not apparent. That result can only be achieved by rewriting or ignoring the provision.
2. Further, construing item 26 according to its terms does not make item 38 otiose. Item 38 needs to be understood in the broader context of the legislative amendments surrounding the creation of the ART. Section 351 of the Act is in Part 5, which, prior to these amendments, provided for merits review of decisions refusing visa applications other than for protection visas (which was, in earlier times the province of the Migration Review Tribunal). There was a separate review regime in Part 7 of the Act for decisions refusing to grant protection visas (which was, in earlier times, the province of the Refugee Review Tribunal). One of the reforms effected by the Transition Act was the repeal of Part 7 (by item 228 of Schedule 2) and consolidation of the review of all visa refusal decisions under the Act in Part 5 (as amended by items 117-227 of Schedule 2). The consequence was that s 351, as amended (by items 139-143 of Schedule 2), would now perform the same role as both the former s 351 and the equivalent provision in Part 7 (s 417). This explains the need for item 38 of Schedule 16: it ensures that the power in s 351 is available in respect of decisions made by the AAT under both s 349 (in Part 5) in its earlier form and s 415 (in the former Part 7).
3. There is, therefore, no reason not to read item 26 of Schedule 16 according to its terms. The result is that the power in s 501BA was available, at the time of the Assistant Minister's decision, in respect of a decision to revoke a visa cancellation made by the AAT.

1. Ground 2 alleges, in substance, that it is implicit in s 501BA that the power conferred on the Minister must be exercised within a reasonable time and that time had expired before the Assistant Minister's decision was made. Put another way, the power expires or ceases to be available if it is not exercised within a reasonable time after the making of the relevant decision.

1. Two things should be noted about s 501BA at the outset.

(a) It confers a power to take a specific step (to set aside a decision made by a delegate or a tribunal and cancel a person's visa) that is completely discretionary. There is no corresponding duty to take that step. Nor are there any surrounding provisions (such as, for example, provisions for formal applications to be made and considered) from which a duty to consider taking that step might be implied.

(b) The power is brought into play by the making of a decision of a specified kind and is framed as a power to "set aside" that decision, rather than a mere power to cancel the visa.

1. Several decisions of single judges of this Court have considered whether purported exercises of s 501BA(2) were invalid by reason of excessive delay. Only one was the subject of detailed submissions in the present case but it is useful to note the others.

(a) In Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24 Lee J held that, if s 501BA was qualified by an implied time limit (which was unnecessary to decide), that limit was not exceeded in the circumstance of the case by a delay of 7 months. The same approach was taken by Bennett J in GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415, in relation to a delay of almost 8 months (although her Honour set aside the Minister's decision on other grounds), and McDonald J in Morgan v Minister for Immigration and Multicultural Affairs [2025] FCA 266 in relation to a delay of 9 months. In Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471 (Archer) McElwaine J assumed that an implied time limit applied but held that it was not exceeded in the circumstances of that case by the elapsing of around 15 months between the decision of the AAT and the exercise of power by the Minister.

(b) In Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 496 (Eswaran), Longbottom J accepted (at [53]) that the "ordinary rule" of statutory construction applied, so that the exercise of power under s 501BA was "subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister". The period that had elapsed between the AAT decision and the exercise of power in that case was around 3 years and 11 months. Longbottom J found, in the circumstances of the case, that there had not been unreasonable delay (at [54]-[69]).

(c) The decision that received significant attention in the parties' submissions was XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553 (XMBQ), in which Horan J granted certiorari to quash a purported exercise of the power in s 501BA(2). His Honour reviewed the decisions mentioned above, held that s 501BA was subject to an implied requirement that any decision to exercise the power be made within a reasonable time, and went on to hold that the period that had elapsed in that case (almost 3 years and 2 months) went beyond a reasonable time.

1. The Assistant Minister formally submitted that XMBQ was wrongly decided but did not seek to persuade me that it should not be followed by another single judge. It follows from this that I should (and do) accept, for the purposes of this proceeding, that the grant of certiorari, in the particular factual circumstances of XMBQ, was correct. The identification of a "reasonable" time is an evaluative and fact-specific exercise; however, it is not discretionary (cf, eg, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [54]- [55] (Gageler J)). The decision in XMBQ is therefore taken to be not merely an appropriate decision but the correct decision in the circumstances of that case. XMBQ is therefore a necessary reference point for the assessment of what is a "reasonable" time, although an answer to that question cannot be reached by mechanistic application of any standard derived from it.
2. Another consequence of accepting XMBQ as correctly decided is that its ratio decidendi is to be taken, for present purposes, to be good law. I therefore proceed on the basis that the following statement (at [140]) is correct.

Accepting that the power under s 501BA must be exercised for the purpose of setting aside an original decision and cancelling the visa, it is a short step to imply a temporal limitation on the exercise of the power by reference to the making of the original decision. Notwithstanding the absence of words such as "upon" or "on" in s 501BA(2), the structure and context of the provision essentially place it in the same territory as the provisions considered in cases such as Koon Wing Lau. The text, context and purpose of s 501BA are sufficient to attract the principle of statutory construction referred to in Koon Wing Lau and subsequent cases, to the effect that an exercise of power under s 501BA to set aside an original decision and cancel a visa must be exercised within a reasonable time after the original decision is made by the delegate or the Tribunal. If the power is not exercised within a reasonable time, it will lapse or expire and will no longer be available for exercise by the Minister. There is nothing in the language or context of s 501BA that is inconsistent with or excludes an implication that the power must be exercised within a reasonable time. Such a construction is supported by the extrinsic material and consistent with the mischief which s 501BA was intended to address.

1. It is also necessary to note some aspects of how, at the level of principle, Horan J approached the question of whether the Minister's decision had been made within a reasonable time. At [169]-[176] his Honour made the following points, which I take to be correct, about the proper approach.

(a) The question involves "an objective assessment having regard to the facts and circumstances of the particular case" (at [169]).

(b) Authorities on unreasonable delay in the performance of a statutory duty (such as Thornton v Repatriation Commission [1981] FCA 71; (1981) 35 ALR 485 (Fisher J) (Thornton), BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [25]-[26] (Bromberg J), ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372 at [21]-[23] (Robertson, Griffiths and Bromwich JJ), Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1 at [37]-[46] (Bromwich, Abraham and McEvoy JJ) and Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [111]-[115] (Horan J), which generally pose the question in terms of whether the delay is "in consequence of neglect, oversight or perversity" (Thornton at 492), may be "capable of providing some guidance". However, the implied temporal limitation here is "based on the purpose for which the power under s 501BA is conferred and must be exercised, and the necessary connection between an exercise of power under s 501BA and the original decision to which the power is directed". The relevant threshold is "not necessarily" couched in the terms drawn from Thornton (at [169]).

(c) The applicant bears the onus of establishing jurisdictional error. However, there may be cases where the delay in exercising the power is "prima facie unreasonable in the absence of a satisfactory explanation" and a "'persuasive' onus" falls on the respondent (at [170]).

(d) The relevant inquiry is whether the period as a whole exceeds a reasonable time, rather than whether there was a lack of action during particular periods, although it may be relevant to identify different bases (applicable to different periods) on which the time taken to exercise the power can be explained or justified (at [171]).

(e) It is the whole period that is relevant, and not only the time taken by the Minister personally once a decision has been brought to their attention by departmental officers. It is therefore necessary to examine departmental processes and the steps taken within the Department of Home Affairs (the Department) in response to the decision (at [172]-[173]).

(f) The concept of a reasonable time must allow sufficient time for a proper consideration of the issues raised by a potential exercise of the power. This includes the time needed for the Department to collect information, apply any referral thresholds, ascertain whether the Minister wishes to consider the matter and prepare a detailed submission (at [174]).

(g) On the other hand (at [175]):

... it is also relevant to take into account the impact of a decision under s 501BA(2) on the rights and interests of the person whose visa is cancelled, including its potential impact on the person's liberty, having obtained a decision from a delegate or the Tribunal under s 501CA to reinstate a visa that had been cancelled under s 501(3A).

(h) The volume of cases and the resources available to the Department may be relevant but is not determinative. So too may be any "competing priorities and their associated demands on the Department and the Minister" (at [176]).

It should be kept in mind, however, that the "cohort" of s 501BA cases (whether themselves or together with s 501A cases) would often be expected to raise exceptional and pressing circumstances, which should usually attract a relatively high priority. This is reflected in some of the extrinsic material accompanying the 2014 amendments that introduced s 501BA.

1. Earlier, at [73] Horan J had referred to the Second Reading speech to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), in which the Minister referred to the need for the government to have "the ability to act decisively and effectively" and said that the proposed measures (including s 501BA) would "ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community".

1. The time that elapsed between the AAT decision and the Assistant Minister's decision in the present case was nearly four years and nine months. It is worth noting, although not determinative, that it was eighteen months longer than the period found to exceed a "reasonable" time in XMBQ. The date of the AAT decision in that case was 13 April 2021 (see at [12]), which suggests that the overall environment in which the two decisions were assessed was substantially the same. The present case involves a lapse of time that, as Horan J put it, is prima facie unreasonable and requires explanation.
2. The Assistant Minister relied on an affidavit deposed by Penelle Stern, an experienced officer in the Department. At the time of making her affidavit she was Director of the National Character Consideration Centre (Revocation and Discretionary) section of the Department. Ms Stern's affidavit evidence can be criticised in that it often spoke in generalities about departmental processes and resourcing issues and traversed a period in which she was working in another agency. However, these aspects of her evidence were not objected to and I have taken them into account.
3. Ms Stern had no personal involvement in any steps that were taken in relation to the applicant's case, other than clearing the submission that ultimately went to the Assistant Minister. This obviously limited the evidence she could give. However, Ms Stern was able to annex documents from departmental records and give evidence, based on her experience, about their import. She was cross-examined about some aspects of the history that emerges from these documents. The following findings can be made.

(a) A few days after the AAT decision, on 16 March 2020, a copy of the decision was emailed to an officer in the Complex and Controversial Cases Section (CCCS), which was within the Character and Cancellation Branch (CACB) of the Character, Cancellation and Case Resolution Division of the Department, for consideration. The decision was sent by the CCCS to various "stakeholders" in the Department on 23 March 2020. The AAT decision may therefore be taken to have come to the attention of relevant officers in the Department very soon after it was made.

(b) On 21 December 2020 a document entitled "Section 501 and character-related AAT set aside decision - assessment against Ministerial referral thresholds" (the December 2020 assessment) was saved to TRIM, which is a departmental document management system. The document was unsigned but recorded the author's opinions in relation to the applicant's offending and the existence of any exceptional circumstances. Considering the matter against the then-current referral thresholds (dated February 2020), the author's view was that the case met the "Department to manage" threshold. The author observed:

Mr HOOD does not pose a serious risk to the Australian community as his risk of reoffending was found by the AAT to be unlikely and he is truly remorseful. The AAT decision [is] not inconsistent with community expectations due to Mr HOOD's ties to Australia and low risk of reoffending.

(c) There is no indication in the records that this document was ever signed, endorsed by a relevant supervising officer or disseminated within the Department. If any of these things had happened, normal practice would have required the relevant documents to have been stored in TRIM. It is therefore more likely than not that the December 2020 assessment went no further than a draft.

(d) On 29 June 2021 a National Criminal History Check was sought in respect of the applicant. This is an indication that his case was once again under consideration. Ms Stern deposed that obtaining a check of this kind was "generally the first step undertaken by an officer" in preparing a submission or brief for the Minister or in undertaking a threshold assessment.

(e) However, no further documents relevant to the applicant appear in the departmental records until July 2022. This indicates that consideration of the applicant's case was again paused.

(f) A note in ICSE (another departmental information system) dated 22 July 2022 asks officers to "Contact complex cancellations prior to any visa/citizenship grant". Ms Stern deposes that a note of this kind is inserted by CCCS in respect of every AAT decision that is referred to it. If that is the case, it is not clear why no such note was created in March 2020 (when the AAT decision was sent to CCCS) or in December 2020 or June 2021. In any event, the note indicates that the applicant's case was being considered or intended to be considered by CCCS. The note continues:

A submission may be provided to Minister regarding setting aside AAT decision. Please refer this case to the NCCC should the individual engage in any further conduct of concern.

(g) A new set of referral thresholds was endorsed by the Minister on 29 March 2023 (the March 2023 thresholds). All cases in respect of which no threshold assessment had been completed (which, based on the documentary records, would have included the applicant's case) were reviewed by reference to the new referral thresholds.

(h) A document entitled "Recommendations for endorsement - AAT Set Aside Cases", referring to 11 visa holders including the applicant, was prepared on 8 June 2023 (the June 2023 recommendations). This document contained a recommendation to the effect that the Department should manage the applicant's case. The document has not been signed by any person to indicate agreement or disagreement with this recommendation.

(i) It is not entirely clear what should be drawn from the June 2023 recommendations. Space is provided for a signature by a Mr Eichholzer, who was the director of CCCS at the time, with the options "agreed" and "please discuss". It is blank, and the natural inference is that if Mr Eichholzer saw the document he did not reach a sufficiently firm conclusion to sign it. Curiously, the space provided for Mr Eichholzer's signature has the date " / /2024" underneath it, which suggests a possibility that Ms Stern is incorrect about when the document was created. This was not explored in cross-examination.

(j) In June 2024 the Department requested an updated National Criminal History Check in respect of the applicant for the purpose of "possible visa cancellation". This check was released to the Department by the Australian Criminal Intelligence Commission on 12 July 2024. This, according to Ms Stern, was a result of the Department undertaking "concerted efforts" to reduce what she described as the "outstanding s 501BA(2) caseload".

(k) On 4 September 2024 Ms Lindsay Cartwright, an officer in the AAT Assessment Team, emailed a "threshold assessment" in respect of the applicant for her to review (the September 2024 assessment) to Ms Angela Cullen (Director - Character Cancellations, Assessments, Referrals and Support) for her review. Ms Cullen signed and returned this assessment the following day. The September 2024 assessment proceeded by reference to the March 2023 thresholds. It contained the following recommendation, which Ms Cullen endorsed.

The Department does not consider this case to meet thresholds as Mr HOOD's sentencing did not exceed 10 years imprisonment and departmental records indicate he was not a high profile member of an organised crime syndicate. However, Mr HOOD received lengthy sentences of imprisonment and media articles indicate his co-offender was the president of an OMCG. As such, recommend testing this matter with the Minister.

(l) On 13 September 2024 a note was placed on ICSE in similar terms to the note of July 2022 referred to above.

(m) Although Ms Cullen endorsed the recommendation in the September 2024 assessment and added "Please prepare a Client Brief", it does not appear that any such document was created. (A "Client Brief" was a document prepared for discussion with the Minister, usually about several cases.)

(n) On 3 October 2024 Ms Cartwright sent another email to Ms Cullen attaching an "assessment" in relation to the applicant for Ms Cullen's review (the October 2024 assessment). Ms Cullen signed and returned this assessment on 8 October 2024. This assessment also proceeded by reference to the March 2023 thresholds and contained the following recommendation, which Ms Cullen endorsed.

The Department considers this case to meet thresholds as Mr HOOD's offending has received sentences of eight years nine months and seven years nine months imprisonment.

Although departmental records indicate he was not a high profile member of an organised criminal syndicate, Mr HOOD's co-offender was the president of an OMCG. There was also media coverage of the offending.

Recommend preparing a submission for the Minister.

(o) There is no evidence as to why relevant officers appear to have changed their view of the applicant's case between the September 2024 assessment and the October 2024 assessment.

(p) Work commenced on a draft ministerial submission on 10 October 2024. The draft submission was submitted for "quality assurance" on 6 November 2024, cleared by Ms Stern on 20 November 2024 and cleared by the Acting Assistant Secretary of CACB on 2 December 2024.

(q) The submission was sent to the Assistant Minister's office on 2 December 2024 and the Assistant Minister's decision was made a week later.

1. In summary, the AAT decision came to the attention of relevant officers in the Department within a few days after it was made. Nothing seems to have been done about it until December 2020, when an assessment was drafted but not finalised or otherwise proceeded with. Somebody sought a criminal history check in June 2021 but took the matter no further. In July of the following year there was thought to be a prospect of preparing a submission to the Minister, but again the matter went nowhere. In (probably) June 2023 an officer recommended taking a position in which the Minister would not be approached, but this was neither endorsed nor rejected by the officer to whom that recommendation was addressed. The matter moved more swiftly from September 2024, with Ms Cullen approving a recommendation that the Minister should be approached and subsequently the preparation of a submission.
2. Counsel for the applicant sought to develop an argument that the applicant's case had been put aside, because relevant officers had determined that it did not meet relevant thresholds for referral to the Minister, and then it had been reconsidered and a different view reached. Ms Stern resisted this characterisation in cross-examination and I accept her evidence. It is true that the documentary record contains three assessments or draft assessments, recommending a conclusion that the case was not one for referral to the Minister; however, none of these documents has been signed off by the senior officer or officers for whom it was prepared. There is no record of the Department coming to any settled institutional view about the applicant until September or October 2024. (I would add that it is not obvious that the Department changing its mind or receiving revised instructions from the Minister, or for that matter the Minister having a change of heart, would necessarily be a significant factor in assessing whether the resulting exercise of power under s 501BA occurred within a reasonable time. It is preferable not to express any firm view about this point in a case where it is not necessary to do so.)
3. Nevertheless, the long history of false starts summarised above is not suggestive of any circumstance that could justify the extraordinary delay that occurred in this case in the light of the factors canvassed by Horan J in XMBQ. There is no evidence of any specific impediment to the Department forming a view within a few months as to whether any, and if so what, recommendation should be made to the Minister in relation to the applicant.
4. Ms Stern also gives evidence of broader circumstances which made it difficult for the relevant areas in the Department to assess cases for the purposes of s 501BA, and decide which ones should be referred to the Minister, within more acceptable time frames. I accept this evidence as far as it goes. It is not necessary to set it out in detail. The short point is, as Ms Stern puts it in her affidavit, that:

Resourcing for the Department's character and cancellations functions has not kept pace with the rapidly growing caseload in this space.

1. The backlog of cases has grown steadily since 2020 (although this may be a consequence of the inability to process cases in a timely way rather than a cause). As a result of events during the COVID-19 pandemic, and the sometimes urgent need to manage impacts on the Department's operations from significant decisions of the High Court and this Court, staffing resources nominally allocated to assessing AAT and ART decisions for the purposes of s 501BA have not infrequently been diverted to other tasks. New Ministers were sworn in to administer the Department on 22 December 2020, 30 March 2021, 1 June 2022 (following an election and a change of government) and 29 July 2024: each new Minister can be taken to have required extensive briefing and to have had their own ideas about how they wanted potential cases for the exercise of personal discretions to be raised with them. Revised Ministerial Directions under s 499 of the Act relating to visa cancellation and revocation of cancellation decisions were issued on 8 March 2021, 23 January 2023 and 7 June 2024. The "referral thresholds" - ministerial instructions about categories of cases that should be raised with the Minister for potential exercise of the s 501BA power - were redrafted in March 2023, as noted above.
2. I do not think it follows from these circumstances that the Assistant Minister's decision in the present case was made within a "reasonable" time. This is for the following reasons.
3. First, as suggested by Horan J in XMBQ at [169], the issues in a case such as the present one are different from those which commonly arise in a case where performance of a statutory duty is sought to be enforced. This flows, as his Honour observed, from the need to keep in mind the purpose for which the power in s 501BA is conferred and the necessary connection between an exercise of that power and the decision to which it is directed. Additionally, the concept of a "reasonable time" is doing quite different work in a case about whether mandamus should go to enforce a duty to do something, as compared to a case about whether the effluxion of time has rendered a power unavailable. The mere absence of "neglect, oversight or perversity" is unlikely to be sufficient in a case of the latter kind, because the stringency of any time limit will depend on the nature and purpose of the power.
4. Secondly, while the availability of resources and the other demands on Ministers' and departmental officers' time are relevant, these factors are not determinative (XMBQ at [176]). Their force is qualified by the consideration that, in the case of a Department of State advising a Minister on a power which there is no duty to exercise, resourcing constraints are to a large extent the consequence of decisions about priorities rather than inviolable limitations. The repository of the statutory power is "the Minister", who is an officer responsible under the Constitution for administering the Department and thus has power to direct where it should focus its efforts. The Minister is also a member of the government which, through the Budget process, determines the allocation of resources among departments. A "reasonable time" for the exercise of a discretionary power, in this context, is a statutory limit which cannot expand infinitely to accommodate the level of resources which the Minister or the government allocate to its consideration. It is a statutory limit implicit in a provision which, as Horan J noted, was envisaged as dealing with circumstances of urgency and providing for swift and decisive action.
5. Thirdly, the factor identified in XMBQ at [175] must be given appropriate weight. The assessment of what is reasonable must take into account the impact of a decision under s 501BA(2) on the rights and interests of a person whose visa has been reinstated, pursuant to the provisions of the Act, but is to be cancelled pursuant to a provision that expressly excludes obligations of procedural fairness and by a decision in relation to which the Act does not provide for merits review (see also Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142; 294 FCR 270, cited in XMBQ at [79]-[80]). The present applicant held a permanent visa, had lived in Australia since infancy and was an elderly man by the time the Assistant Minister's decision was made. It is a reasonable inference that he envisaged spending the rest of his life in Australia. The consequences of the decision for him are obviously very significant.
6. Ground 2 is therefore made out.

1. In the light of my conclusion above, it is not strictly necessary to address ground 4. However, in circumstances where the Minister has appealed from the judgment of Horan J in XMBQ, it is desirable that I should set out my conclusions on this ground. For this purpose I proceed on the assumption that my conclusion in relation to ground 2 is wrong; ie, either the power in s 501BA(2) is not subject to an implied time limit, or my assessment that the time taken to make the Assistant Minister's decision went beyond the relevant time limit is incorrect.
2. As developed in submissions, there appear to be three strands to the contention that the Assistant Minister's decision was legally unreasonable:

(a) first, that it was unreasonable to exercise the power in s 501BA many years after it became exercisable and in circumstances where there was no suggestion that relevant aspects of the "national interest" had changed in that time;

(b) secondly, that the applicant had been assessed as not meeting the relevant referral thresholds and there was nothing new to trigger a change of position; and

(c) thirdly, that there was nothing before the Assistant Minister to controvert the expert assessment, accepted by the AAT, that the applicant posed a very low risk of reoffending.

1. For reasons set out above, the factual foundation for the second of these propositions is not established.
2. As to the third proposition, the only requirement for the availability of the power in s 501BA(2) is the Minister's satisfaction that it is in the "national interest" that the power be exercised. As Owens J put it in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [33], it is the "state of affairs produced by the Tribunal's decision" that the Minister is required to consider: "the result, and not the reasoning", is in issue. The Assistant Minister therefore did not need to engage with, let alone rebut, the Tribunal's findings. While the conclusion that the applicant posed a very low risk of reoffending might well have been relevant to the Assistant Minister's assessment of the national interest, a host of other factors was also potentially relevant. The "national interest" is a broad and ultimately political conception. In the light of the significant nature of the applicant's offending, and indications in some of the documents annexed to Ms Stern's affidavit that it was connected with activities of an outlaw motorcycle gang, the Assistant Minister's decision could not be said to lack an "evident and intelligible justification" (cf Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ) (Li)).
3. This leaves the issue of timing. In Li at [91], Gageler J observed (citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 290) that the implied condition of reasonableness "is not confined to why a statutory decision is made; it extends to how a statutory decision is made". (This understanding must be taken to be implicit in the reasoning of the other members of the Court in Li, because the ultimate decision was that the unreasonable exercise of a procedural power vitiated the final decision of the tribunal in that case.) Conceivably, therefore, legal unreasonableness (in the sense that "the result itself bespeaks error" (Li at [85] (Hayne, Kiefel and Bell JJ)) might be found on the basis that there is no plausible justification for the timing of a decision that is otherwise within power.
4. However, if the correct understanding of s 501BA is that the power it confers is not subject to an implied time limit (or that the time limit it imposes was not exceeded in the present case), that feature of the power must be taken into account in seeking to identify the kinds of exercises of the power that could be considered "unreasonable". It would be erroneous to use the label of unreasonableness to create a de facto limit on the availability of the power where such a limit has been held not to exist as a matter of statutory construction. On this hypothesis, Parliament has conferred on the Minister a power to set aside a decision by a delegate or the AAT, so as to cancel a person's visa, with the intention that the power would be available to be exercised a long time after that decision (either at any time or within a time limit that was not exceeded in this case). Something more than delay is therefore needed to attract the label of unreasonableness: the delay would need to be capricious, perverse or otherwise incapable of justification.
5. The delay that occurred in the present case, extreme as it was, did not have that character. While Ms Stern's evidence does not establish a direct causal link between specific events affecting the Department's operations and specific instances where consideration of the AAT decision in the present case was paused, the inference can fairly readily be drawn that the delay that occurred in the present case was at least partly the product of insufficient resources being available to assess in a timely way all of the decisions that successive Ministers wished to have assessed. That, as I have noted above, can properly be said to be at least partly the consequence of decisions about resource allocation. However, such decisions are the province of the executive and should not be second-guessed by the judicial branch in the application of broad conceptions such as "unreasonableness". There was, therefore, an evident and intelligible justification for the Assistant Minister's decision having been made a very long time after the AAT decision: it was that, because of finite resources and competing priorities, only limited resources could be devoted within the Department to assessing cases for the purpose of determining whether they should be raised with the Minister for the purpose of s 501BA. While opinions may differ about the wisdom or appropriateness of requiring what appears to be a fairly time-consuming assessment of every case in circumstances where the resources to perform those assessments were lacking, this does not take the Assistant Minister's decision outside the area of decisional freedom conferred by s 501BA(2).
6. If ground 4 required determination, therefore, I would reject it.

1. The Assistant Minister's decision was beyond power and should be set aside. There will therefore be an order in the nature of certiorari quashing that decision.
2. The originating application also seeks mandamus, requiring the applicant's application to be determined according to law, and an injunction preventing the Assistant Minister from making any further decision or taking further action on the subject matter of these proceedings. The prayer seeking mandamus appears to have been included in error, because there is no "application" before the Assistant Minister and no statutory duty remaining unperformed. The proposed injunction is unnecessary because there is no evidence to indicate that the Assistant Minister will make further attempts to exercise the power in s 501BA in the face of the reasoning above. Certiorari, which has the consequence of restoring the applicant's visa, is a sufficient remedy in this case.
3. Both parties sought their costs but neither expanded on the point in submissions or sought to be heard further. I infer that neither party wished to be heard against costs following the event in the usual way. I consider that that is the appropriate outcome and will make an order accordingly.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.