Kiad v Minister for Immigration and Citizenship [2025] FCA 703

1. In February 2015, Mr Kiad was arrested and charged with an offence under the Criminal Code (Cth), alleging he was involved in the planning of a terrorist act in Australia. He was remanded in custody, bail refused. The Minister's cancellation decision was made days after Mr Kiad's arrest and charging, while he was on remand awaiting trial. Though not relevant to the present application, he later pleaded guilty and was, after a successful sentence appeal, sentenced to 16 years imprisonment with a non-parole period expiring in early February 2027: Al-Kutobi v The King [2023] NSWCCA 155; 378 FLR 218. Thus, he has not been at liberty for over 10 years, and he has never been in immigration detention.
2. The evidence supporting the charges, including protected information which could not be disclosed to Mr Kiad pursuant to s 503A, forms the basis for the Minister's conclusions that the statutory criteria for the exercise of the visa cancellation power under s 501(3)(b) had been met, and that exercise of the discretion was appropriate.

Whether there is a material error in the Minister's decision

1. With the qualification that the Minister formally contends that AJN23 was wrongly decided, it is common ground that the statement at [32] of the Minister's reasons, which appears in his discussion of the exercise of the discretion to cancel Mr Kiad's visa, contains error based on a pre-NZYQ understanding of the law:

Indefinite detention

[32] I note that available information to the department indicates that Mr KIAD is stateless. I acknowledge, that as he is stateless, he will not be able to be removed from Australia and as a consequence of the statutory provisions may be liable to indefinite, or a long period, of immigration detention, if I decide to cancel his visa.

1. The Minister contends that the decision's error is confined to this paragraph, where it was plainly considered as a reason not to cancel Mr Kiad's visa, evidently because of the harshness of extended or indefinite detention. Despite an argument that is advanced to the contrary by Mr Kiad, I accept that read properly and in context, the prospect of detention was being noted by the Minister at [32] as a reason not to exercise the discretion to cancel the visa. However, for the reasons that follow, I do not accept that the error can be readily, to adopt a helpful and evocative expression used by senior counsel for the Minister, "ring-fenced" from the rest of the reasons.
2. In opposition to any such ring-fencing, Mr Kiad relies upon AJN23 at [51]:

... A multifactorial evaluative decision such as that of the Minister cannot be analysed as a simple balancing exercise; "[a] task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments": CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] per Colvin, Stewart and Jackson JJ, and see also [27] and [34]-[35]. Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot "be affirmatively concluded that the outcome would inevitably have been the same had the error not been made": LPDT at [16].

1. It follows that the paragraphs in the Minister's reasons relied upon by Mr Kiad require close consideration to determine whether the error expressly manifested in [32] infects all or any of them, implicitly or otherwise. That is, the question is whether any other paragraphs were affected by an error that, had it not been made, meant that there was a realistic possibility that the decision could have been different. Or to use the language in LPDT at [16] reproduced above, the question is whether it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made.
2. Mr Kiad's application must succeed if he can show only that there was a realistic possibility that his visa would not have been cancelled but for the error permeating other parts of the Minister's reasons; and conversely, his application must fail if the Minister can show that Mr Kiad's visa would still have been cancelled. The Minister may not have to go that far in all cases, but it really is such a dichotomy in this case.
3. The cancellation power that was exercised by the Minister was in s 501(3)(b), which enables a visa to be cancelled by the Minister, without the rules of natural justice or the code of procedure in the Migration Act applying, and without there being any right to merits review if:

(a) the Minister reasonably suspects that the visa holder does not pass the character test as defined in s 501(6); and

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

1. The definition of the character test relied upon by the Minister was that in s 501(6)(d)(v), which relevantly provided that, for the purposes of s 501 and thus s 501(3), a person does not pass the character test if, in the event the person was allowed to remain in Australia, there is a risk that the person would:

represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way ...

1. The Minister's reasons in addressing those statutory criteria are relatively short, comprising 39 paragraphs over four and a half pages. They are divided into:

(a) an introduction;

(b) consideration of whether Mr Kiad did not pass the character test at the point at which he had only been charged with offences, albeit very serious ones, and therefore necessarily retained the presumption of innocence;

(c) consideration of whether it was in the national interest to cancel Mr Kiad's visa;

(d) considerations going to the exercise of the discretion to cancel Mr Kiad's visa; and

(e) a conclusion.

1. Within that framework, the following paragraphs of the reasons are relied upon by Mr Kiad to demonstrate the contamination of the Minister's decision by the error that he would face prolonged or indefinite detention if his visa was cancelled by reason of being stateless and therefore being unable to be removed from Australia, being the substance of the error at [32].
2. Under the character test heading, having regard to all the available information including information that could not be disclosed to Mr Kiad, the Minister concluded that Mr Kiad represented an unacceptable risk to the Australian community. In the final paragraph before the conclusion that he suspected that Mr Kiad did not pass the character test, the Minister said:

[15] Mr KIAD is currently on remand, bail has been refused and a bail hearing adjourned. However, a bail decision can be revisited at short notice. I consider that if bail is granted Mr KIAD may be at liberty in the community. If he was so at liberty then I reasonably suspect that he would represent a danger to the Australian community.

1. This paragraph was not ultimately relied upon by Mr Kiad as evidencing contamination by the same error shown at [32], but rather as demonstrating that the Minister was aware of a dichotomy between Mr Kiad retaining a visa and being able to be in the community if he was granted bail, and him not retaining a visa, so that even if bail was granted, he would not return to the community because he would then be in immigration detention. While this paragraph does not include any overt reference to prolonged or indefinite detention, I am satisfied that this is not just an available way to read [15], but the most rational way of reading it. While this part of the reasons was concerned with the character test, the threshold of being a danger to the community would only be met if Mr Kiad was able to be a part of that community and not either in gaol or in immigration detention.
2. The Minister's reasons took the next step of considering whether cancelling Mr Kiad's visa would be in the national interest, recognising that this was a separate and distinct question from whether he passed the character test: [17]. In that context, Mr Kiad relies upon the immediately following paragraphs of the Minister's reasons as being implicitly affected or influenced by, but not yet contaminated by, the same error as in [32]:

[18] In considering whether it is in the national interest to cancel Mr KIAD's visa, I formed the view that it is reasonable to conclude that matters of national interest could include, amongst other things, the protection of the Australian community from acts of terrorism.

[19] In considering the national interest, I did have regard to the risk of Mr KIAD engaging in such behaviour. I find that, even if the risk of him engaging in such behaviour is low, great harm to the community or a segment of the community could result should Mr KIAD carry out such activities in Australia.

1. It is made express in the above paragraphs that the Minister was of the view that the national interest included protecting the Australian community from acts of terrorism, that he should have regard to the risk of Mr Kiad engaging in such behaviour, and that even if the risk of that happening was low, great harm could result if that took place. However, those paragraphs convey more than that. Implicit in this reasoning is that avoidance of what might be only a low risk was only possible if Mr Kiad remained in custody, or had his visa cancelled in circumstances in which he would then be in immigration detention for a prolonged period or indefinitely (especially given the reference at [32], repeated at [37], to him being stateless and not able to be removed from Australia).
2. The low risk adverted to depended not just on the possibility of Mr Kiad being granted bail identified at [15], but also upon him being able to take advantage of being on bail by reason of still having a visa so as not to be kept in immigration detention. The alternative plainly being considered, in the context of considering the national interest, is that only cancellation of Mr Kiad's visa would eliminate that risk. That interpretation then makes sense of the conclusion as to the national interest at [21]:

I thereby conclude that it would be in the national interest, having regard to all the information inclusive of the protected information, for me to cancel Mr KIAD's visa.

1. Having concluded that the statutory criteria for the exercise of the power to cancel Mr Kiad's visa had been met, the Minister's reasons then turned to the exercise of the discretion. After the Minister observed at [22] that he was mindful of the Australian government's commitment to using s 501 to "protect the Australian community from the unacceptable risk of harm that may result from criminal activity or other serious conduct by non-citizens", he turned to that specific topic, under the heading "Protection of the Australian community":

[23] The Government is committed to protecting the Australian community from the unacceptable risk of harm. In considering the risk of harm to the community as a result of a person's conduct I consider that violent acts, or the threat of violence/intimidation, are very serious. In addition offences involving terrorism are repugnant to the Australian community.

[24] I note that Mr KIAD has not physically harmed anyone in Australia to date and has no criminal history in Australia or offshore. He nonetheless has been arrested and charged for his alleged involvement in the preparation for, or planning a terrorist act.

[25] I find, even if the risk of Mr KIAD engaging in such behaviour is low, great harm to the community or a segment of the community could result should Mr KIAD carry out such terrorist acts in Australia. The harm that could result is so serious that any risk of it occurring in the future is unacceptable.

1. Paragraph 23 provides the immediate context for [25], referring overtly to protecting the Australian community from an unacceptable risk of harm, including from offences involving terrorism. The Minister then finds at [25] that even if the risk of Mr Kiad planning or preparing for a terrorist act was low, the risk was unacceptable. None of that makes much sense unless, as with [18] and [19], implicit in this reasoning is that avoidance of that risk was only possible if Mr Kiad remained in custody, or had his visa cancelled in circumstances in which he would then be in immigration detention for a prolonged period or indefinitely.
2. Again, it is implicit that the Minister understood that the risk of Mr Kiad being at liberty in the community would arise only if he was granted bail (as identified at [15]) and his visa was not cancelled, so that he was not placed in immigration detention. It was plainly considered, this time in the context of considering the exercise of discretion, that only cancellation of Mr Kiad's visa would eliminate that risk.
3. It follows that I am satisfied that the admitted error in [32], where it is not material, is also implicit in paragraphs that articulate important reasons for the ultimate conclusion that Mr Kiad's visa should be cancelled. That error in those places was therefore material, and as a result constituted jurisdictional error.
4. I am unable to be satisfied that, had this clearly implicit error not been made, a reasonable possibility of a different result can be excluded. It is not speculation, for example, to note that among the outcomes expressly presented to the Minister to consider, and rejected by him while holding an erroneous understanding as to indefinite or prolonged detention, was the option of deferring the consideration of visa cancellation and awaiting the outcome of the criminal proceedings. This Court is not conducting a forbidden merits review or impermissibly looking forward by identifying a possible alternative outcome that was actually before the Minister at the time of making the visa cancellation decision, and being unable to rule out that non-cancellation outcome as being realistically possible.
5. It follows that the Minister's decision must be set aside and accordingly Mr Kiad's visa is necessarily taken never to have been cancelled. Mr Kiad also seeks an order restraining the Minister from giving effect to the visa cancellation decision. I do not consider that he has established any need for such an order if the Minister's decision was set aside.
6. It has not been suggested that there is any reason why costs should not follow the event. Accordingly, the Minister must pay Mr Kiad's costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.