Lov, Tith v Minister for Immigration and Citizenship [2026] FedCFamC2G 65

In my view, it would not be "appropriate" to cancel under Subdivision F if it is more appropriate to cancel under Subdivision C or D. There was no consideration of the relative merits of cancellation under any subdivision other than Subdivision F

1. In considering the alternative forms of cancellation, the applicants submit that the delegate erroneously found that if they had travelled to Australia, that would have circumvented any possibility of their visas been cancelled. The applicants submit that it was always open to the Minister to rely upon the ground for cancellation in s 116(1)(a) whether they were in Australia or not.
2. In substance the applicants' case is that the s 128 power is draconian and that there needs to be something in addition to the mere risk of travel and entry into Australia to justify the use of the power. Absent strong relevant factors, it is submitted that the use of cancellation without notice in this case should have been seen as capricious and a finding to that effect could have weighed in the applicant's favour and potentially given rise to a different decision.

1. The Minister submits that there is no internal contradiction in the decisions and that the delegate's reasoning process coheres. The delegate accepted that the applicants had not attempted to enter Australia and had sought permission from the Department to do so. The delegate accepts that the applicant's had acted appropriately. That is not inconsistent with the delegate's reasoning that it could not "exclude the possibility" that the existence of "strong motivating factors may have caused the former visa holder to have attempted to enter Australia, if he had been issued [a] notice of intention to consider cancelling the visa. That was reasoning based on a counterfactual - a consideration of what might have happened if the applicants had been provided with notice of an intention to consider cancellation.
2. Furthermore, the Minister submits that the delegate was responding to an argument by the applicants representative that the cancellation was unlawful (see the delegate's reasons at pages 4-6 of the decision). The delegate was not considering this issue under the rubric of "other reason". The delegate was really responding to the submissions made by the legal practitioner. It should also be noted that the delegate did not attribute a weighting to this discussion.

1. I agree with the Minister's submission that, read in context of the delegate's reasons as a whole, the delegate did not consider the manner of cancellation as part of its consideration of whether there was "another reason" to revoke the cancellation. The delegate engaged in this discussion about the manner of cancellation in the course of responding to a submission made on behalf of the applicants that the visa cancellation decision itself was unlawful.
2. So much is evident from the delegate's rejection of the applicants' submission that the cancellation decision was unlawful. The delegate noted, in that respect, that if applicants believe that to be so, remained open to them to seek judicial review of it.
3. In any event, I am satisfied that the delegate did give detailed consideration to the relative risks of cancelling the visas under Subdivision E (with notice) as against Subdivision F (without notice). In the course of that consideration the delegate recognised that the applicants had not attempted to enter Australia and that they had complied with the conditions on the visa. However, the delegate also noted that the applicants had booked tickets to Australia and had sought travel facilitation letters, leading to the possibility that the applicants might try to travel and enter Australia. In considering the counterfactual, namely what might have occurred had the applicants been put on notice of the intention to cancel their visas, the delegate was entitled to have regard to the possibility that the applicants might not have acted as they did.
4. There is no merit in this ground and the applicants have not made out jurisdictional error.

Was the decision not to revoke the cancellations unreasonable in all the circumstances (Ground 5, particular(h))

1. By way of a catch-all argument, the applicants' submit that in all the circumstances of the case, the refusal to revoke the cancellation was unreasonable. The applicants submit that the whole global situation should have been considered, particularly in the context of the applicant having endured significant delay, much of which lay with the Department.
2. As they have done under other grounds, the applicants again point to the following circumstances which they say creates a compelling context in which the decision not to revoke the cancellation should be seen to be unreasonable: 15 years of visa processing, 3 refusals by the Department all of which were set aside by the Tribunal, 5 medical examinations, 5 police checks, 5 assurances of financial support, the cost of air travel to Australia and all the other costs and hardships relating to this process, including the ageing and illness and death of the primary visa holder, and the sons remaining unmarried.
3. In his oral submissions, counsel for the applicants reiterated that some of the delay and some of the factors which aggravated the applicant's distress, can be attributed to decisions by the Department which had later been found to be incorrect.
4. At its core, the applicants' submission is that in all the circumstances, they have been unsympathetically and harshly treated and have been dealt an unfair hand. It is a submission which appeals to an inherent sense of fairness and reasonableness one should expect in administrative decision-making.
5. It his written outline of submissions, the applicants' counsel said at [58]:

The scale of suffering inflicted on this family over this period of years, including on the Australian citizen sponsor, was so egregious that the decision not to revoke the cancellation of the visas was beyond the bounds of legal reasonableness, and beyond jurisdiction

1. The Minister accepts that the conclusion reached by the delegate was not that they had hoped for. Having regard to the very unfortunate background including the significant effluxion of time, it is not unsurprising that the applicants regard the decision is harsh.
2. Nonetheless, the Minister submits that the ground must be rejected. The lengthy visa application process is not the measure of the reasonableness of the ultimate decision. What must be considered is whether the delegate's decision contains an evident and justifiable process of reasoning leading to a conclusion. In this case, the delegate's decision making was lengthy, detailed and it dealt with all of the submissions raised by the applicants. The conclusion reached was not so unreasonable as to be beyond the bounds.

1. I broadly agree with the submissions of the Minister that the delegate's conclusion was for the most part underpinned by a logical process of reasoning. The delegate did endeavour to deal with the issues and evidence put before it and, as I have found, its consideration and determination generally fell within the bounds of decisional freedom, notwithstanding that other minds might differ.
2. However, I have found that the delegate's finding that each of the applicants had knowledge of and withheld information from the Department about the father's illness was not a finding supported by probative evidence or necessary inference. I have found jurisdictional error. It is not a minor error and I find that it corroded the decision-making process and resulted in an unreasonable outcome. The consequential finding, that the circumstances of the cancellation were not outside the control of the applicants, is confounding.
3. As I have found that the applicants are entitled to relief, it is not necessary for me to consider this ground any further.

Did the delegate deny procedural fairness to the applicants (Ground 6)

1. The allegation of denial of procedural fairness has already been discussed above in the context of (a) the delegate's erroneous finding that the applicants had knowledge of and knowingly concealed their husband's/father's illness from the Department and (b) the delegate's decision not to seek or invite further information from the applicants about the strength of the relationship with the sponsor, the primary applicant's brother.
2. In the case of the knowledge and concealment of the primary applicant's cancer diagnosis I have found that the delegate fell into jurisdictional error by not putting these matters to the applicants before making such a serious adverse finding against them.
3. In relation to the issue of the relationship between the applicants and their uncle, I have found that there was no denial of procedural fairness and that there was no obligation on the delegate to make further enquiries about the issue.

Would a reasonable lay person consider that the delegate could not bring an open mind to the revocation application (apprehended bias) (Ground 7)

1. The applicant's submit that looking fairly at the reasons, including the weighting given to certain matters by the delegate, it is open to the court to conclude that "in all the circumstances the parties or the public might entertain a reasonable apprehension that the [decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it"[32].
2. In oral submissions, counsel for the applicants pointed in particular to:

the vigorous and definite and unsupported finding by the delegate that the secondary applicants were acting - not his phrase, in bad faith - but essentially acting in bad faith, by withholding the information of the husband and father's ill-health from the Department. That finding was made with no foundation. And it was made contrary to the thrust of some quite strong evidence to the contrary.

1. The applicants emphasise that they assert apprehended bias, not actual bias on the part of the delegate.
2. The applicants' submission is premised on the allegation that the delegate did not give due weight to all the circumstances including the cost in time and money in the distress to the former visa holders of the repeated refusals to grant them visas, including refusals found by the Tribunal to have been wrong. The applicants' submit that these events and the delegate's rejection of the argument that the Department had unreasonably or unlawfully dealt with the former visa holders, was sufficient to cause a reasonable lay observer to consider that the delegate's mind might not have been open to consider, with due and dispassionate attention, all of the circumstances before him. Such an apprehension will result in the decision being made beyond jurisdiction.

1. The Minister attacks this ground as an exercise in "backwards reasoning" or retrofitting an allegation of apprehended bias to explain an unpalatable decision. It is submitted that the applicant's arguments on this ground involves a subversion of the proper process for establishing jurisdictional error.
2. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42, Gummow ACJ, Hayne, Crennan and Bell JJ described as "fallacious" an argument that "because one side lost the litigation the judge was biased". Their Honours continued by saying that "[t]o ask whether the reasons for judgment delivered after trial of an action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry"[33]

1. I accept the Minister's submission and find that this ground does not establish jurisdictional error. The reasons do not reveal a reasonable apprehension of bias.

1. Having found jurisdictional error which is deserving of relief, it is not strictly necessary for me to deal with the application for leave to amend and reopen at any length. However, in the event I am found to be wrong about any of the matters discussed above, it is appropriate for me to rule on the applicant's application.
2. By way of an interlocutory application filed on 24 January 2025, the applicants sought leave to amend their applications for judicial review in the form of a Further Amended Application.
3. The Further Amended Application[34] seeks the following additional relief:

1A. A declaration that sections 116 and 128 of the Migration Act 1958 are invalid in their operation in respect of the applicants.

1B. A declaration that the decisions on 31 July 2023 purporting to cancel the applicant's visa and on 21 November 2023 purporting to refuse to revoke the cancellation of the visas were nullities.

1. The applicants also sought to include a new ground 1A, which is in the following terms[35]:

1A. Sections 116 and 128 of the Migration Act 9058, in their application to the cancellation of the Applicants visa by reason of the death of the primary visa holder after the grant of the visa, are not reasonably capable of being seen as necessary to protect the integrity of the immigration process, and are properly characterised as unreasonable, as not in the national interest, not for the peace order and good government of the Commonwealth, and punitive.

Particulars

(a) The Applicant had been open and honest and compliant in her dealings with the Respondents ("the Minister's) department, informing the Department of the death of the primary visa holder, even after the Minister had taken a total of nearly fifteen years to grant the visa, and that was after 3 decisions to refuse to grant the visa, each of those decisions subsequently overturned by the relevant Tribunal. There was no reason to suppose that if the Applicant were to enter Australia, she would cease to be open and honest and compliant in her dealings with the Ministers department. The Applicant refers to the matters set out in the other Grounds to the application.

1. On 28 January 2025, the applicants gave notice to the Commonwealth and state attorneys-general pursuant to s 78B of the Judiciary Act 1903 (Cth), alerting them to the fact that the proceeding involved a matter arising out of the Constitution or involving its interpretation. The notices were served on the basis that the proposed Further Amended Application raised issues regarding the validity of sections 116 and 128 of the Act.
2. The applicants sought to re-open their case and to make submissions in support of the new ground 1A as set out in the proposed Further Amended Application. The interlocutory application was not heard until 2 May 2025 to accommodate the availability of the parties' counsel. There was no appearance for or on behalf of the Commonwealth or any state.
3. Prior to the hearing the applicants and the Minister filed detailed written submissions and provided lists of authorities on which they intended to rely.
4. The Minister opposed the application for leave to file the Further Amended Application and the application to reopen the applicants' case.

Framework for consideration of applications to reopen

1. The Minister submitted, in my view correctly, that the applicants required leave to reopen. As the Minister submitted, the application was not one whereby the applicants were simply seeking to draw the court's attention to relevant authority which had not been referred to at the substantive hearing. In this matter, the applicants were seeking leave to amend a further ground and a further prayer for relief, matters not advanced previously, after the parties had closed their cases and judgment had been reserved. As a Minister submitted, the filing of s 78B notices makes clear that the applicants are seeking to amend and to press a completely new submission.
2. The Minister opposed the application and submitted that exceptional circumstances needed to be demonstrated before the court should contemplate granting leave to reopen.
3. The authorities and principles which guide the judicial discretion to reopen a hearing are relatively well settled. In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], Kenny J said (omitting citations):

The authorities indicate that, broadly speaking, there are 4 recognised classes of case in which a court may grant leave to reopen, although these classes overlap and are not exhaustive. These 4 classes are (1) fresh evidence;(2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law. In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.

1. At [26], Kenny J reiterated that the overriding principle requires that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. This general statement of principle has found favour in many subsequent decisions.
2. In Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 (Spotlight) the Victorian Court of Appeal also considered the circumstances in which leave to reopen might be contemplated and cautioned that they would be rare. At [17]-[18] the Court observed:

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgement reserved, to be reopened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and difficult to protect. The reopened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to polish parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or the other of the prescribed limits.

Is there a satisfactory explanation for seeking to reopen?

1. In seeking to amend their application and reopen the judicial review hearing, the applicants principally relied on the decision of the Full Court of the Federal Court in Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146 (Galuak), a decision delivered on 14 November 2024, some months after I had reserved judgment in the substantive hearing.
2. The applicants rely on the Full Court decision in Galuak in support of the following propositions:

(a) First, in Galuak the Full Court found and declared that s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) was invalid in its operation in respect of the appellant, with the consequence that his Australian citizenship could not be cancelled or revoked. The significance of this finding, according to the applicants, was that the Court extended the established principles relevant to consideration of legislative invalidity to include consideration of the specific circumstances of the individuals in respect of whom the legislative power was to be exercised. Thus, the applicants submit, Galuak opened up the opportunity for the applicants to challenge the validity of relevant Commonwealth laws as those laws operated in relation to them;

(b) Secondly, the applicants' submit that Galuak was decided after the substantive judicial review hearing had closed and judgement was reserved. For that reason, the applicants submit they could not have reasonably pleaded or raised the invalidity arguments contemplated by Galuak at an earlier point in time;

(c) Thirdly, the applicants' submit that there is an overarching obligation on parties to draw the court's attention to relevant legal developments, whether they favour the party's case or not. That is pressed as an independent reason why it is appropriate for the hearing to be reopened and for submissions to be made to be made about the effect of Galuak; and

(d) Fourthly, the applicants submit that in the current case, Galuak squarely raises an argument about the constitutional validity of the Minister's power to cancel and revoke cancellation of visas, insofar as those powers were exercised in relation to the applicants' uniquely specific circumstances. The applicants' submit that the constitutional dimension to these proceedings and the service of notices pursuant to s 78B of the Judiciary Act 1903 (Cth) marks this issue as an important one which warrants judicial consideration.

1. In summary, therefore, the applicants submitted that Galuak had expanded the law in a way which enables the applicants to make arguments which were not obvious or open to them before Galuak was decided.
2. The applicants submit that their challenge to the validity of a law of the Commonwealth has sufficient merit and that it is in the interests of the administration of justice for leave to be granted to allow argument on this further ground.
3. The Minister opposed the applications and submitted that this was not a proper occasion for the grant of leave to reopen where:

(a) the proposed amendments to the application and the relief sought would significantly alter the direction of the judicial review application and the case the Minister had been called on to meet. The substantive proceeding sought to impugn the delegate's decision not to revoke the visa cancellations. The Minister argues that the applicants should not be permitted to redefine the boundaries of the controversy to include a collateral attack on the visa cancellation decision;

(b) further, in order to amend the judicial review application to include a challenge to the visa cancellation decision, the applicants would require and would need to justify a very significant extension of time. No such application has been made;

(c) the applicants have misconstrued Galuak and vested it with an importance it does not have. The Minister submits that the so-called "Galuak extension" is illusory, In truth, Galuak is consistent with a series of earlier High Court decisions and does not establish any new principle which could not have been raised by the applicants in the substantive hearing in 2024;

(d) the applicants have not demonstrated the exceptional circumstances necessary for a grant of leave; and

(e) the lack of merit of the proposed amendments should be seen as dispositive of the application for leave amend and reopen.

1. The application for judicial review had, until this application, been focused solely upon the decision by the Minister not to revoke the cancellation of the applicants' visas. Counsel for the applicant conceded, as he must, that the additional relief introduced into the Further Amended Application would have the effect of seeking to impugn the Minister's decision to cancel the applicants' visas.
2. The Minister submitted that this change of focus was significant and that the applicants should not now, after the close of their substantive case, be permitted to open up a new front for judicial review. The Minister reiterated that in order to do so, the applicants would need an extension of time to seek judicial review on this new basis and demonstrate extraordinary circumstances to justify the grant of an extension. There is no apparent basis for an extension, save the for emergence of Galuak.
3. The Minister submitted that the applicants are endeavouring to do the very thing that the Court of Appeal cautioned against in Spotlight. The original application which was argued before the court on 4 July 2024 was already very comprehensive, relying on 7 grounds and a huge number of sub- grounds and particulars. The Minister argues that by seeking to shift the goalposts to incorporate an attack on the original decision to cancel the applicants' visas, the applicants are blurring the boundaries which confined the arguments at the substantive hearing. The Minister submits that there is a public interest in the finality of litigation and the applicants should not be permitted to reopen simply because new arguments have occurred to them.
4. In responding to these points, counsel for the applicants reminded the court of its inherent power to amend applications and that it should exercise that power as necessary to allow for the reasonable adjudication of all issues in the controversy. Mr Krohn accepted that the primary focus of the substantive application was on the refusal to revoke the visa cancellations, but he submitted that issue cannot be dealt with without also considering the validity of the statutory provision on which the cancellation itself was based. In that sense, counsel submitted that the cancellation and the non-revocation decisions are inextricably intertwined and that the amendment is necessary to ensure that the whole controversy can be quelled. All that being said, the applicants accept that the case for amendment and reopening is dependent on the submission that Galuak has moved the goalposts.

1. In Galuak the appellant, born in Sudan, had been granted a special humanitarian visa and became an Australian citizen in November 2007. Some years later, at the age of 22 he was convicted of rape (which he committed when he was 13 years old) and was sentenced to five years' imprisonment.
2. In 2017, the Minister revoked the appellant's citizenship under s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth), which authorised the Minister to revoke a person's citizenship if at any time after making an application for citizenship the person is convicted of a "serious offence"[36]. The revocation of citizenship then triggered the grant of an "ex-citizen visa" under the Migration Act, which was then mandatorily cancelled under s 501(3A) of the Act due to the appellant's criminal record. The Administrative Appeals Tribunal affirmed both the revocation of the appellant's citizenship and the visa cancellation. The appellant sought judicial review of those decisions and was unsuccessful at first instance.
3. The appellant appealed and, among other arguments, challenged the constitutional validity of s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) as applied to him, arguing it was punitive and contrary to Chapter III of the Constitution. The appellant argued and the court ultimately found that a law stripping citizenship is prima facie punitive unless reasonably capable of being seen as necessary for a legitimate non-punitive purpose (e.g., protecting the integrity of naturalisation). Although the High Court in Jones v Commonwealth (2023) 280 CLR 62 (Jones) had previously upheld the constitutional validity of s 34(2)(b)(ii) for adults because prior serious offending could undermine the statutory "good character" requirement, the Full Court distinguished the circumstances of the appellant. Noting that the appellant had acquired citizenship as a child under 16, where there was no requirement to establish good character, the Full Court found that revocation of citizenship based on prior offending in his case could not be linked to correcting an irregularity in the naturalisation process. It was held that applying s 34(2)(b)(ii) to the applicant was punitive and thus invalid under Chapter III.
4. Galuak reinforced the principles emerging from High Court judgments in Jones, Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 276 CLR 336 (Alexander) and Benbrika v Minister for Home Affairs (2023) 280 CLR 1 (Benbrika) that punitive measures cannot be imposed by the Executive and that the constitutional validity of a power authorising citizenship revocation depends on whether that power serves a legitimate non-punitive purpose, such as protecting the integrity of the citizenship or immigration schemes. Those cases established that a law which is otherwise constitutionally valid, could be punitive in its application to a particular individual or his or her circumstances. Punitive measures require judicial determination by a Chapter III court, and cannot be the subject of executive power.
5. Counsel for the applicants in the present case, submitted that by tying the question of constitutional validity of a Commonwealth law to the operative affect of that law's application to a particular person, the court in Galuak extended the principles established in Jones, Alexander and Benbrika.
6. The applicants submit that post-Galuak the critical question is whether a particular legislative provision as it applies to a particular person is reasonably necessary for the legitimate administrative purpose of protecting the integrity of the system. The so-called Galuak extension, as described by the applicants, is that a provision which may be broadly valid, can nevertheless be invalid in its application to a particular person or the circumstances of that person. Therefore, if the court accepts that the power to cancel a visa or not to revoke a cancellation should properly be characterised as punitive as against the applicants, the power is exclusively judicial[37].
7. The applicants' argument here is that the delegate's decision to cancel the visas and the delegate's decision not to revoke the cancellation should each be seen as punitive having regard to the applicants' unique circumstances. The applicants say the relevant circumstances of their case which frame the assessment of the validity of ss 116 and 128 include:

(a) the 15 year wait for a final decision on the visa applications;

(b) the Departmental and administrative errors which resulted in three visa refusal decisions being overturned by the AAT;

(c) that the second visa refusal decision was completely inept and was made without regard to the grounds on which the first refusal decision was overturned;

(d) that the applicants have had to carry the cost of multiple medical examinations;

(e) the stress and burden of uncertainty and the exhaustion which comes with that;

(f) that the applicants have lost their husband and father, a tragic circumstance compounded by the cancellation of their visa for no fault of their own;

(g) that the adult dependent sons have refrained from marriage and have turned down other avenues for work and study and international travel;

(h) that the applicants have at all times acted in good faith, been cooperative with departmental officers and have been transparent in their dealings with the Department;

(i) that the decision not to revoke the cancellation is not subject to any right of review on the merits, such that the applicants have effectively been banished from Australia on the strength of that administrative decision;

(j) that the applicants have been denied the legitimate expectation of a new life in Australia; and

(k) that the applicants have spent money on booking flights.

1. The applicants submit that the detriment that was imposed upon them by the cancellation and non-cancellation decisions are so harsh that the laws which underpin exercise of those powers can only be characterised as punitive, and not as having a legitimate non-punitive purpose.
2. The applicants stress that they do not challenge the validity of the Minister's cancellation powers as such, rather their challenge to validity is based on the provisions as they apply to them and their circumstances. The cancellation of the applicants' visas is said to be punitive because it goes well beyond what was reasonably necessary for the maintenance of the integrity and administration of the migration process.
3. Counsel for the applicants acknowledged that his clients had also challenged the non-revocation decision on the basis that it was legally unreasonable for similar reasons. However, he submitted that unreasonableness can become punitive and Galuak is an example of that. Mr Krohn submitted that in light of Galuak, the argument about validity is logically anterior to his pleaded ground of legal unreasonableness and that reopening the case is necessary to ensure that all arguments can be ventilated before a decision is made on the application.

1. Counsel for the Minister described the applicant's reliance on Galuak as a "figleaf". The Minister submits that the applicants' reliance on Galuak is an irrelevant distraction, designed only to get a leg up to present arguments which could have been put earlier. The Minister submits that the arguments the applicants now seek to advance simply rely on established principles arising from a series of earlier High Court judgments, to which the Full Court decision in Galuak has added nothing of substance.
2. Having considered the relevant line of authorities which preceded Galuak, I agree with the Minister's submission. The Minister made the following submissions which I also accept as putting the so-called Galuak extension to bed.
3. First and foremost the Minister submits that Galuak has nothing to do with the present applications, either factually or legally. Galuak was a case which dealt with the cancellation of citizenship rights, not the cancellation of a visa which had been granted to non-citizens. The Minister rightly highlights the fundamental difference between the depriving an Australian citizen of the fundamental rights of nationality and participation in political sovereignty on the one hand and the removal of the temporary or permanent or conditional license which is conferred by a visa on a non-citizen on the other.
4. Galuak and the High Court cases which it followed are all cases involving the exercise of executive power to strip citizenship, upon the Minister being satisfied the citizen had engaged in criminal offending. In each of those cases the plaintiffs sought to impugn the relevant power as being "punishment" exerted on the basis of criminal guilt.
5. In order to consider the true import of Galuak, it is necessary to very briefly survey the authorities which preceded it.
6. In Alexander the applicant held Turkish and Australian citizenship. The applicant was imprisoned by Syrian authorities. The Australian security agencies later assessed that the applicant likely joined and supported Islamic State. Relying upon that assessment, the Minister determined the applicant should cease to be an Australian citizen. Upon challenging the ministerial decision, the High Court found that s 36B of the Australian Citizenship Act 2007 (Cth) was invalid in respect of the applicant because "... it reposes in the Minister for Home Affairs exclusively judicial function of punishing criminal guilt".
7. The High Court in Benbrika similarly found s 36B of the Australian Citizenship Act 2007 (Cth) to be invalid in its application to the relevant applicant. The applicant in that case had been born in Nigeria and had later moved to Australia and became an Australian citizen. He was subsequently convicted of terrorism by the Victorian Supreme Court and given a 15 year sentence for that criminal conduct. The Minister then determined that the applicant should cease to be an Australian citizen.
8. The case of Jones involved an applicant who had been born in the United Kingdom before moving to Australia and becoming an Australian citizen. The Minister revoked Mr Jones citizenship after he was convicted in Queensland of five sexual offences, some of which were "historical", and was sentenced to 2 ½ years imprisonment. In Jones the High Court found that s 34(2)(b)(ii) of the Australian Citizenship Act was not invalid in its operation in respect of the plaintiff because it does not repose in the Minister the exclusively judicial function of punishing criminal guilt. The High Court in Jones placed emphasis on the non-punitive purpose of the law, namely the purpose of protecting the integrity of naturalisation process and the importance of the character requirement in that process.
9. In Galuak the Full Court held that the provision found by the High Court to be valid in respect of Mr Jones (s 34(2)(b)(ii) of the _Australian Citizenship Act 200_7 (Cth)) was invalid in respect of its operation to Mr Galuak. But that finding was made after considering the applicants attributes as a person who became a citizen is a child under 16 and where he was not subject to any statutory "good character" requirement when citizenship was conferred. It was, in my opinion, a case of established principle being applied to different facts and circumstances.
10. While the applicants seek to invoke Galuak in support of their argument of constitutional invalidity, I accept the Minister's submission that they are, in truth, seeking to rely on established principles to which, at best, Galuak has added only a gloss.
11. There is no Galuak "extension". In characterising the validity of a statutory provision it is proper to consider the intended purpose of the legislation and its proposed impact upon a particular class, but not by reference to the actual impact. Galuak does not extend the statutory task to a rearward looking process which commences with a consideration of the impact of the impugned law on the individuals in respect of whom it is being applied.
12. Alexander, Benbrika and Jones were all delivered well before the application for judicial review was filed in this particular case. By the time of Jones, there was no question that the stripping of citizenship was prima facie punitive and that the only remaining question was whether there was a legitimate non-punitive purpose for the law. The Minister submits that the principles established by those cases laid down the basis for the arguments which the applicants now seek to advance in a reopening.
13. In any event, the Minister submits that visa cancellations are an altogether different executive power, relative to citizenship revocation. To that end, the Minister submits that High Court decision in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 (Falzon) provides a complete answer to the applicant's claims of constitutional invalidity. In Falzon, a case which involved a challenge to the validity of visa cancellation laws on Chapter III grounds, Kiefel CJ, Bell, Keane and Edelman JJ said at [47]:

The exercise of power of cancellation by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa is a step necessary to achieve the removal of the person from Australia should be viewed in the same light.

1. Falzon confirms that the deportation of aliens does not constitute punishment. For completeness, I note that Falzon was cited by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (NZYQ) for the proposition that "an alien's status, rights and immunities under the law differ from those of a non-alien in a number of important respects[38].
2. Acts carried out by the executive to ensure the protection of the community by preventing the entry of aliens are not acts of punishment. The Minister submits that there is plainly a nonpunitive purpose for a law providing the cancellation of visas. That is to exclude from the Australian community a category of aliens whom Parliament has determined should not have permission to enter Australia.

1. I agree with the Minister that the proposed amendments are fundamentally misconceived. The reliance upon Galuak as a basis to reopen the application for judicial review and to press arguments which seek to impugn the Minister's decision to cancel the applicants' visas lacks merit.
2. I am not satisfied that there is a proper basis, let alone exceptional circumstances, to grant leave to the applicants to amend their application and to reopen their case. Based on the light of authority discussed above, I am satisfied that prior to the hearing of the substantive application for judicial review, it was open to the applicants to plead and to argue the grounds for which they now seek leave to reopen. I agree that Galuak does not open the door to a new light of argument which was not available to the applicants in July 2024. Accordingly, leave to reopen is denied.
3. However, should another court consider that leave should have been granted, I would in any event (and for the reasons advanced above) have dismissed the proposed new ground and denied the relief sought in the Further Amended Application. In my respectful view, the cancellation of Australian citizenship (which is prima facie punitive) is a world apart from the valid executive power to protect Australia from unauthorised aliens by way of visa cancellation. So much was made clear by the High Court in Falzon.

1. For the reasons set out above, I have found that the non-revocation decision of the delegate was affected by material jurisdictional error. The applicants are entitled to relief, albeit not in the form sought in the amended application.
2. The proper orders are that the delegate's decisions should be quashed and that the applications for revocation should be remitted to the Minister to be considered and determined in accordance with law.
3. The reasons of the delegate did not in my opinion reveal a reasonable apprehension of bias. That is one of the many grounds which the applicants failed to make out.
4. That said, given my findings in this judgment, I cannot discount the possibility that such an apprehension might arise if the applications for revocation were remitted to the same decision-maker. As a matter of caution, given the arduous course of these applications and the risk of further litigation, I will order that the Minister allocate the remittal to a different decision-maker.
5. Further, for reasons set out in this judgment, I have dismissed the applicants' application for leave to further amend and to reopen. In my view, there was nothing in the proposed further amended grounds or in the authorities relied upon by the applicants that could not properly have been raised and argued in the substantive judicial review hearing.

I certify that the preceding two hundred and ninety-three (293) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[2] Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821 at [5] (Ryan J).

[3] Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517; (2004) 140 FCR 233 at

[18] (Cooper J). And see also, V120/00A v Minister for Immigration and Multicultural and Indigenous

Affairs [2002] FCA 264; (2002) 116 FCR 576 at [54]- [55] (Kenny J); and AUK21 v Minister for Immigration, Citizenship,

Migrant Services and Multicultural Affairs [2022] FedCFamC2G 957 at [14]- [16] (Deputy Chief Judge

[4] In oral submissions counsel for the applicants agreed that the relevant decision was the decision to cancel the secondary applicants' visas.

[6] Migration Act 1958 (Cth), s 131(1)(b).

[7] Migration Act 1958 (Cth), s 131(1)(b).

[9] Lorenzo Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [31] (Paduano); see also, Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50.

[11] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ), quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCAFC 456; (1993) 43 FCR 280 at 287; see also Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).

[12] Minister's written outline of submissions at [45]-[55].

[13] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).

[14] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[55].

[15] MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ).

[16] DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [53] (Bromberg, Mortimer and Snaden JJ).

[17]ANN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G at [76]-[77].

[18] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [14]- [16].

[19] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [29] (Kiefel CJ, Keane, Gordon and

[21] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) FCAFC 263 (16

September 2004) at [58] (Black CJ, French and Selway JJ).

[22] Affidavit of Mengsrin Tith (sponsor) affirmed on 9 May 2024, [7]-[8].

[23] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[24] Minister for Immigration and Citizenship v SZMDS (2011) 240 CLR 611; [2010] HCA 16.

[25] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21] (Gageler, Keane and Nettle JJ).

[26]Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) (French CJ, Hayne Kiefel, Bell,

Gageler JJ.) at [67]-[72] (Hayne, Kiefel and Bell JJ).

[27] As noted by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [62].

[28] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [53] (Gageler J), [80] (Nettle and Gordon JJ) and [131] (Edelman J) (SZVFW); also, Li at [24]-[29] per French CJ, [63]-[68] (Hayne, Kiefel and Bell JJ) and at [88]-[92] (Gageler J).

[29] SZVFW at [51]‑[53] (Gageler J), [84] (Nettle and Gordon JJ) and [134]‑[135] (Edelman J).

[30] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44]- [47].

[31] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40] (Gleeson CJ and McHugh J).

[32] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294.

[33] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ). See also, CNY17 v Minister forImmigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [68], [71] (Nettle and Gordon JJ), [135] (Edelman J); Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [90] (the Court).

[34] The proposed Further Amended Application was annexed to an affidavit of the applicants' solicitor, Mr Eskine Rodan, sworn on 13 March 2025.

[35] The proposed amendment is in these terms in relation to Ms Lov's application.

[36] As defined in s 34(5) of the Australian Citizenship Act 2007 (Cth).

[37] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.