Lynn v Minister for Immigration and Citizenship [2026] FedCFamC2G 253

1. On 14 September 2023, a delegate of the first respondent made the decision to cancel the applicant's Electronic Travel Authority (Class UD) subclass 601(Electronic Travel Authority) visa (ETA visa) under s 128 of the Migration Act 1958 (Cth) (Migration Act) (delegate's decision).
2. On 12 September 2025, I made an order extending time under s 477(2) of the Migration Act within which to file his application for judicial review, and I set the matter down for a final hearing. On 2 November 2025, the applicant filed an amended application. The first respondent does not object to the applicant filing the amended application which contains two grounds of review. Both grounds are considered below.

1. On 6 June 2023, the applicant, a citizen of Canada, was granted an ETA visa. The applicant is currently offshore. An ETA permits its holder, for a period no longer than 12 months, to travel to and enter Australia on multiple occasions and remain therein for up to three months per visit.
2. At the time of the decision, for the grant of an ETA visa, it was a requirement of cl 601.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) that the visa holder genuinely intended to visit Australia temporarily as a tourist, or to engage in a business visitor activity.
3. On 14 September 2023, a delegate cancelled the applicant's ETA visa, without notice, on the basis that the delegate was satisfied s 128(a)(i) was met, as one of the "prescribed grounds" for cancelling a visa applied to the applicant, within the meaning of s 116(1)(g) of the Migration Act. The delegate was satisfied that a prescribed ground for cancellation existed by reference to reg 2.43(1)(ea)(i) of the Regulations.
4. On 21 September 2023, the Department notified the applicant that his visa had been cancelled.
5. On 19 October 2023, the applicant sought revocation of the delegate's cancellation of his ETA visa under s 131 of the Migration Act.
6. On 29 January 2023, the applicant filed an application in this Court seeking an order for an extension time in which to file an application for judicial review.

1. Section 116(1)(g) of the Migration Act relevantly provides:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

...

(g) a prescribed ground for cancelling a visa applies to the holder.

Cancellation of visas of people outside Australia

If:

(a) the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

1. Regulation 2.43(1)(ea)(i) of the Regulations relevantly provided:

(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

...

(ea) in the case of a Subclass 601 (Electronic Travel Authority) visa - that, despite the grant of the visa, the Minister is satisfied that the visa holder:

(i) did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted.

1. Regulation 1.03 defines "tourism" to mean "participation in activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sightseeing and travel".
2. Regulation 1.03 defines "business visitor activity" to mean:

(a) ... any of the following activities undertaken by a person:

(i) making a general business or employment enquiry;

(ii) investigating, negotiating, entering into, or reviewing a business contract;

(iii) an activity carried out as part of an official government to government visit;

(iv) participation in a conference, trade fair or seminar in Australia unless the person is being paid by an organiser for participation; but

(b) does not include either of the following activities:

(i) an activity that is, or includes, undertaking work for, or supplying services to, an organisation or other person based in Australia;

(ii) an activity that is, or includes, the sale of goods or services directly to the general public.

1. In making his argument about which part of the definition of "business visitor activity" applied in the applicant's case, the applicant submitted, in his written and closing oral submissions, that he only relied upon part of the definition in sub-clause (a) (iv) of the definition in reg 1.03. He submitted that the applicant's street preaching amounted to, "participation in a... seminar in Australia...".
2. In his second ground of review, the applicant relies upon s 116 of the Australian Constitution. Section 116 of the Constitution provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

1. At the hearing on 28 November 2025, the applicant advised that Notices of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) had, on 12 November 2025, and prior to the hearing on 28 November 2025, been served on the Attorneys-General of the Commonwealth and of the States.
2. The s 78B Notices related to the argument in the second ground of review contained in the application to this Court which raises a matter under the Constitution. That is, the argument that s 128 of the Migration Act, and the delegate's purported exercise of power under s 128, were ultra vires s 116 of the Constitution because they were contrary to (the purported) implied right of freedom of religion in the Constitution.
3. Subsection 78B(1) of the Judiciary Act provides as follows:

Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

1. According to an affidavit, sworn on 1 December 2025 by Mr Kutusi, solicitor for the applicant, on 12 November 2025, the applicant prepared, filed and served a Notice of a Constitutional Matter under s 78B of the Judiciary Act on all of the State, Territory and Commonwealth Attorney-Generals. Mr Katusi gave evidence in his affidavit that at the time of swearing the affidavit he had received replies from the Commonwealth, Queensland, South Australia, Tasmania and Victoria all of which notifying him they did not presently intend to intervene in the proceedings. Mr Katusi also said that at the time of swearing his affidavit he had not received a response from New South Wales, the Northern Territory or the Australian Capital Territory.
2. However, I have decided, for the reasons set out below, the second ground of review is not arguable because there is no recognised implied freedom of religion in the Australian Constitution. Thus, the s 78B Notices were unnecessary: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [1999] FCA 1151; (1999) 167 ALR 303 at [13] (and [14]) citing Burchett J in Amrit Lal Narain v Parnell [1986] FCA 89; (1986) 9 FCR 479 at 489 (Amrit Lal Narain v Parnell). This is because, applying Amrit Lal Narain v Parnell, the argument being made by the applicant in this Court does not "really and substantially" involve a matter arising under the Constitution, or its interpretation.

1. In his decision dated 14 September 2023, the delegate was satisfied that s 128(a)(i) of the Migration Act was met, as one of the "prescribed grounds" for cancelling a visa applied to the applicant, within the meaning of s 116(1)(g) of the Migration Act.
2. The delegate was satisfied that there was a prescribed ground for cancellation by reference to reg 2.43(1)(ea)(i) of the Regulations. The delegate was satisfied that the applicant, as an ETA visa holder, did not have at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the "tourism" or "business" purposes for which the visa was granted.
3. The delegate set out his reasons for this conclusion under s 128(a)(i) as follows:

Section 128(a) (i) of the Migration Act 1958

I am satisfied that there are grounds for cancellation of this visa under section 128 of the Migration Act 1958, relying on the grounds at section 116(1)(g) of the Act and regulation 2.43(1)(ea)(i) of the Regulations. I am satisfied that despite the grant of the ETA visa, the visa holder did not have at the time of visa grant, the intention to stay in or visit Australia temporarily for the tourism or business purposes for which the visa was granted.

Open source information and information on the visa holder's social media pages as detailed in Part B of this decision demonstrate that the visa holder is a street preacher, and that they undertook this activity on numerous occasions during their travel to Australia from 7 June 2023 to 7 July 2023. The visa holder's Instagram page details that the visa holder was undertaking an 'Australia Tour' for Christ's Forgiveness Ministries to engage in these street preaching activities. I find that this behaviour is not in line with the tourism or business visitor activity purposes for which the visa holder's ETA visa was granted.

1. The delegate also decided it was appropriate, in the circumstances, to cancel the ETA visa without notice under s 128 of the Migration Act.
2. Finally, the delegate, having found a ground for cancelling the applicant's ETA visa, considered the exercise of a residual discretion in deciding whether to cancel the applicant's ETA visa. Based on a consideration of a number of factors, including, the purpose of the visa holder's travel to and stay in Australia, the extent of the applicant's compliance with visa conditions, the degree of hardship that may be caused to the visa holder and any family members and Australia's international obligations, the delegate decided to cancel the visa.

1. In his amended application for judicial review under s 476 of the Migration Act, the applicant relies upon two grounds of review. The grounds as set out in the applicant's written submissions are as follows:

(a) The delegate misconstrued the definitions of "tourism" or "business visitor activity" as defined in the Migration Regulations 1994 (Cth), engaged in illogical reasoning and constructively failed to perform the statutory task; and/or

(b) The decision, being one purportedly authorised by the Migration Act, permits a delegate of the Minister to make determinations based on expressions of religious views in public by persons. A commonwealth law which prohibits a person (in this case the Applicant) from expressing their religious views in public or exercising his religion in public, is ultra vires s 116 of the Australia Constitution and is thus unconstitutional.

1. The first is an argument that the delegate committed jurisdictional error. The second is an argument that s 128 of the Migration Act, under which the delegate's decision was made, interferes with (or burdens) an implied right of freedom of religion under the Australian Constitution, and the therefore the delegate's decision should be quashed.

1. At the hearing of this matter on 28 November 2025, Mr F. Maghami of Counsel appeared on behalf of the applicant, instructed by Solve Legal Pty Ltd. Mr G Johnson of Counsel appeared for the first respondent, instructed by Australian Government Solicitor.
2. I set out below the submissions made by the parties under consideration of each of the two grounds of review.

1. The applicant's submissions on the two alternative limbs of ground 1 are set out in his written submissions at paragraphs [17]-[20] as follows (excluding footnotes):
   1. First, the delegate failed to consider whether religious activities undertaken while traveling, constitute tourism. The definition of tourism is broad and non-exhaustive, comprising 'participation in activities of a recreational nature' including examples of "amateur sporting activities, informal study courses, relaxation, sightseeing and travel." The delegate completely bypassed the definition of tourism and did not engage with a critical - and potentially determinative - question, namely whether religious activities are 'recreational' in nature.
   2. While the delegate stated, in deciding to cancel the Applicant's visa, that "I have carefully considered the above information and had full regard to all the circumstances of the visa holder's case" (CB 14), it is trite that such sweeping statements will not immunise a decision from scrutiny by a court on judicial review. Reading an administrative decision maker's reasons 'beneficially' does not permit a Court "to fill in gaps in the path of reasoning". The delegate erred by failing to engage with critical issues arising from the material, in circumstances where it is not apparent why the non-exhaustive definition of "activities of a recreational nature..." cannot (or should not) encompass street preaching.
   3. Second, the delegate eschewed meaningful consideration of whether the Applicant's street preaching amounted to participation in a seminar. The ordinary meaning of 'seminar' includes "a conference or other meeting for discussion or training". The Applicant's activities comprised the communication of ideas on religious topics and engagement with members of the Australian public. Such activities constituted participation in a 'seminar' because they involved a meeting for religious discussion. Applying a proper construction of "business visitor activity", it was not reasonably open to the delegate to conclude that the Applicant's activities were not a business visitor activity.
   4. Additionally, the delegate proceeded on an unwarranted binary assumption that the Applicant either intended to engage in tourism or street preaching. Unwarranted assumptions may establish that a finding is illogical. In this instance, the delegate artificially delineated the concepts of tourism and street preaching, when street preaching may be a recreational activity as well as a legitimate subset of tourism.
2. During his oral submissions to the Court, Mr Maghami submitted that essentially the Tribunal had (i) mis-construed or too narrowly construed the definition of "tourism" and "business visa activity"; and (ii) mischaracterized the conduct of the applicant by failing to consider that the definition of "tourism" or "business visa activity" includes "religious activities".
3. Mr Maghami submitted that the applicant's religious activities, which included street preaching, were activities of a "recreational nature", or, alternatively, that the applicant's religious activities constituted "a seminar" adopting a dictionary definition of "seminar", being, broadly, a conference or other meetings for discussion or training.
4. Mr Maghami submitted the delegate committed jurisdictional error by failing to consider, or misconstruing, the definitions of "tourism" or a "business visitor activity" under the Migration Act.

1. In the first respondent's written submissions, the Minister firstly submits that, before addressing the two grounds of review, the applicant's submission that the question of whether the applicant's conduct amounted to "tourism" or a "business visitor activity" is not a jurisdictional fact for the Court to determine. It was submitted that it was a matter for the delegate, exercising power under s 128, to be satisfied there was a ground for cancelling the visa under s 116, and whether the discretion to cancel should be exercised. It was submitted that the delegate's satisfaction under s 128 are not objective jurisdictional facts and the Court is not permitted to stray into merits review by re-deciding that issue on the merits. In support of this submission, the first respondent cited EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [66].
2. Thus, it was submitted that the delegate's decision having been based upon the "delegate's satisfaction", the basis upon which the decision can be challenged, is limited only to the kinds of errors referred to by the High Court in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (Avon Downs) at 360, namely, a failure to address the question which the Act formulates, mistake of law, taking into account extraneous reasons or excluding from consideration some factor which should affect the determination. The Minister submitted these grounds, while limited, have been added to and refined over the years: see Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 380 ALR 393 (Ali) at [42].
3. The first respondent then turned to the applicant's arguments. The substance of the first respondent's written submissions in response to ground 1 are as follows:
   1. First, the applicant submits that the delegate failed to consider whether the applicant's religious activities were "recreational" in nature, by reference to the definition of "tourism" in reg 1.03: AS [17]. Regulation 1.03 stated that "tourism means participation in activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sightseeing and travel." No error is made out. While the delegate did not give reasons expressly for any consideration of whether the activities of the applicant it described in some detail constituted "tourist" as defined, it is obvious that the delegate formed the view that those activities were not "activities of a recreational nature". The delegate concluded that "I am not satisfied that the visa holder's street preaching activities are in line with the purpose for which their ETA was granted, namely tourism or business activities as defined by regulation 1.03 of the Regulations": CB 13.
   2. This is not a case where, to return to the Avon Downs principles and by reference to the definition of "tourism" and employing the natural meaning of "activities of a recreational nature" (informed by the examples given in the definition), "on a full consideration of the material that was before him, [the conclusion is] found to be capable of explanation only on the ground of some such misconception [mistake of law, etc]". The information before the delegate revealed not only the "numerous occasions" on which the applicant was engaged in street preaching in Sydney from 7 June 2023 to 7 July 2023, but also the nature of the applicant's work and enterprise as an evangelist. The information before the delegate revealed that the applicant is an "Evangelistic figure" who sold books, and was conducting when he came to Australia, an "Australian tour". In short, the applicant had come to Australia to work and promote his brand as an "internationally known street preacher". He was not in Australia with the intention to engage in recreation as a tourist. Street preaching was not, on any view of the material before the delegate, the applicant's "recreation". It was, as explained on the applicant's own website, his "ministry". The delegate did not misconstrue the law.
   3. For similar reasons, the applicant's submission that the delegate proceeded on an unwarranted binary assumption that the applicant either intended to engage in tourism or in street preaching (AS [20]) cannot be accepted. He submits that reg 2.43(1)(ea)(i) does not preclude concurrent intentions to engage in particular activities during a temporary tourist visit. It is unnecessary for the Court to determine whether concurrent intentions might be open under reg 2.43(1)(ea)(i). In the present case, the information revealed, and the delegate found, that the applicant did not have at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted. However, the applicant's construction of reg 2.43(1)(ea) is incorrect: AS [21]. The use of the word "only" in the regulation qualifies the intention, not the length of stay ("temporarily"). must be read as a whole, and with regard to its purpose. The purpose is to ensure that non-citizens who enter Australia on an ETA with an intention other than to stay or visit temporarily for the tourism or business purposes for which the visa was granted should cease to hold the ETA. If an ETA holder is found at the time of grant to have had an intention to stay or visit Australia temporarily for the tourism or business purpose for which the visa was granted, then the regulation is engaged. No error by the delegate is made out.
4. At the hearing, Mr Johnson submitted that the definition of "tourism" in reg 1.03 was a closed definition governed by the introductory word "means". In other words, tourism was limited to activities "of a recreational nature", like the activities set out in the definition: amateur sporting activities, informal study courses, relaxation, sightseeing and travel.
5. It was submitted that religious activities, in particular "street preaching", was not a recreational activity, particularly in view of the evidence before the delegate, which included evidence that, his intention at the time of the grant of the visa was not to engage in recreational activities such as sightseeing or relaxation, but rather to conduct an Australian Tour to promote his on-line Ministry and his brand as an "internationally known street preacher".
6. Mr Johnson submitted on the definition of "business visitor activities", there was no information before the delegate, that at the time of the grant of the visa, the applicant's intention was to come to Australia to attend a seminar, for example at a conference venue or hotel, rather it was to promote his on-line Ministry by gathering with supporters in public spaces. It was submitted that the nature of the gatherings in public places, which attracted law enforcement, and, from the applicant's website, the applicant has "challenged and defeated almost every theological and philosophical position that has approached him on the streets", are not the elements one would properly consign to a "seminar" for the purpose of the regulations.

1. On 14 September 2023, the delegate notified the applicant of the decision to cancel his ETA visa, without notice.
2. Section 128(a)(i) provides that the Minister may cancel a visa if satisfied that a "prescribed ground" for cancelling a visa applies to the holder. Section 128(a)(ii) provides that if the visa holder is outside Australia, the Minister may, without notice, cancel the visa. Section 128(b) provides a residual discretion.
3. The delegate was satisfied, under s 128(a)(i), that one of the "prescribed grounds" for cancelling the ETA visa applied to the Applicant under s 116(1)(g) of the Migration Act. The particular ground which the delegate relied upon under s 116(1)(g) was a "prescribed ground" in reg 2.43(ea)(i) of the Regulations.
4. Under reg 2.43(ea)(i), at the time of the delegate's decision, the delegate had to be satisfied that, "[the applicant] did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted".
5. At page 13 of the Court Book, after considering the evidence of grounds of cancellation, the delegate concluded:

Based on the above information, I am not satisfied that the visa holder's street preaching activities are in line with the purpose for which their ETA visa was granted, namely tourism or business visitor activities as defined by regulation 1.03 of the Regulations. Therefore, I consider that the visa holder did not have at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which their visa was granted. Accordingly, I consider there is a ground for cancellation of the visa holder's ETA visa under section 116(1)(g), relying on the prescribed ground at regulation 2.43(1)(ea)(i) of the Regulations.

1. At page 13 of the Court Book, under consideration of s 128(a)(i) of the Migration Act, the delegate was satisfied that despite the grant of the ETA visa, the applicant did not have, at the time of visa grant, the intention to stay in or visit Australia temporarily for the tourism or business purposes for which the visa was granted. The delegate found:

Open-source information and information on the visa holder's social media pages as detailed in Part B of this decision demonstrate that the visa holder is a street preacher, and that they undertook this activity on numerous occasions during their travel to Australia from 7 June 2023 to 7 July 2023. The visa holder's Instagram page details that the visa holder was undertaking an 'Australia Tour' for Christ's Forgiveness Ministries to engage in these street preaching activities.

1. Based on this, the delegate found "this behaviour" was not in line with the tourism or business visitor activity purposes for which the visa holder's ETA visa was granted.
2. Again, at page 14 of the Court Book, under consideration of the residual discretion in s 128(b), the delegate was not satisfied that the visa holder's street preaching activities are in line with the tourism or business visitor activity purposes for which ETA visas are granted. The delegate found that the visa holder's purpose of travel and stay in Australia was not in line with the purpose for which the visa was granted.
3. For the reasons that follow, I do not accept the applicant's argument that the delegate misconstrued the definitions of "tourism" or "business visitor activity" as defined in the Regulations or engaged in illogical reasoning and/or constructively failed to perform the statutory task.
4. Firstly, the Minister argues, and I accept, the exercise of the power under s 128 to be satisfied of a ground for cancelling the ETA visa under s 116, and whether the discretion to cancel should be exercised is purely a matter for the delegate, as the administrative decision maker. I accept that the question of whether the applicant's conduct amounted to "tourism" or a "business visitor activity" is not a jurisdictional fact for this Court to re-determine. I accept that this Court is limited to whether the delegate committed an Avon downs error.
5. Secondly, the grounds upon which the existence of the subjective state of mind of the delegate for exercising the power under s 128 can be challenged and jurisdictional error asserted, are limited as stated by the Full Court in Ali. They are limited to whether the delegate failed to address the question which the Migration Act formulates, arrived at a conclusion affected by some mistake of law, took into consideration some extraneous reason or excluded from consideration some factor which would affect the determination: see Avon Downs at 360.
6. Thirdly, I do not accept the applicant's submission the delegate "failed to consider" whether the applicant's religious activities (his street preaching) were "recreational in nature" within the meaning of reg 1.03. As set out above at page 13 of the Court Book, after considering the evidence of grounds of cancellation, the delegate expressly found that:

...I am not satisfied that the visa holder's street preaching activities are in line with the purpose for which their ETA visa was granted, namely tourism or business visitor activities as defined by regulation 1.03 of the Regulations...

1. While there is no specific reference in terms to the definition of "tourism", in my view, the reference to "as defined by regulation 1.03" in the delegate's reasons should be read as the delegate having regard to the definition including to the reference in the definition of tourism to "activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sightseeing and travel". I accept the first respondent's submission that it is obvious from the plain reading of the delegate's decision that the delegate did not consider the applicant's activities, his street preaching, to be "activities of a recreational nature". For example, the finding on page 13 of the Court Book, and the reference to "... this behavior is not in line with the tourism or business visitor activity purposes..." to be redolent of the delegate deciding that street preaching, as engaged in by the applicant, not to be an activity of a recreational nature:

The visa holder's Instagram page details that the visa holder was undertaking an 'Australia Tour' for Christ's Forgiveness Ministries to engage in these street preaching activities. I find that this behaviour is not in line with the tourism or business visitor activity purposes for which the visa holder's ETA visa was granted.

1. The finding on page 13 of the Court Book was made after consideration of all the evidence which showed the applicant was an evangelist, who had his own on-line (YouTube) ministry (Christ's Forgiveness Ministries), who had come to Sydney for his "Australian Tour" from 9 June 2023 to 6 July 2023. It was reasonably open on the evidence for the delegate to conclude street preaching was "not in line with tourism" - it was not the applicant's "recreation". He was not in Australia for a holiday, or as a tourist. In my view, there was no misconstruction by the delegate of the definition of "tourism" in reg 1.03.
2. Fourthly, I do not accept the applicant's argument that the delegate proceeded on an unwarranted binary assumption under reg 2.43(1)(ea)(i) that the applicant either intended to engage in tourism or street preaching. It was submitted by the applicant that the delegate erred by making "a binary decision". The applicant submitted that the regulation did not preclude the applicant from having concurrent intentions in particular activities during a temporary tourist visit to Australia. It was submitted reg 2.43(1)(ea)(i) did not preclude the applicant from having (and the delegate from finding that the applicant had) a "concurrent intention" to a tourist and engage in religious activities such as street preaching, and the delegate should have applied the regulation on this basis.
3. The applicant's construction of reg 2.43(1)(ea)(i) must be rejected. In my view, properly construed, the use of the word "only" in the first part of sub-clause (i) of reg 2.43(1)(ea)(i) qualifies "intention", namely, whether the applicant's stay in Australia temporarily was for "the tourism or business purposes for which the visa was granted". The word "only" in this context precludes any construction that would allow a "concurrent intention". This construction conforms to the purpose of the regulation, in my view, which is to ensure that non-citizens who enter Australia on an ETA visa other than with the intention of visiting temporarily for the tourism or business purpose, are not granted, or cease to hold, that visa. There is no basis, in my view, for construing the regulation as allowing the delegate to find the applicant could have two concurrent or different intentions.
4. Fifthly, I reject the submission that the delegate eschewed meaningful consideration of whether the applicant's street preaching amounted to participation in a "seminar". The evidence before the delegate led him/her to conclude (on p12 of the Court Book) that:

...the visa holder is a street preacher whose presence and activities in various cities have resulted in incidents of community unrest requiring police intervention on several occasions. I consider the evidence on the visa holder's social media pages indicates that they undertook street preaching in public places in Sydney on numerous occasions during their visit to Australia from 7 June 2023 to 7 July 2023. Open-source information indicates that police were required to intervene on two separate occasions due to complaints from members of the public and general unrest.

1. Given these findings, I do not consider the delegate failed in some way to consider whether the applicant's religious activities in Australia amounted to a seminar, or, in the words of the definition of "business visitor activity" in reg 1.03(a)(iv), a "conference, trade fair or seminar". I consider that street preaching is not a "seminar" within the meaning of "business visitor activity" in reg 1.03(a)(iv), properly construed. The meaning of "seminar" under the definition in reg 1.03 is a reference, in context of the entire definition, to a business or educational seminar, as that activity is commonly understood, for example at a place of business, a conference venue or a hotel venue. The words of the definition make this clear, including the exception in in reg 1.03(a)(iv) which says, "...unless the person is being paid by an organiser for participation". In other words, when considering whether an activity is a "conference, trade fair or seminar", it will not be considered such an activity if you are paid to attend by the organiser. For example, if you are a paid presenter. I consider the exception informs what the proper meaning of "seminar" should be under reg 1.03.
2. Contrary to the applicant's submissions, "street preaching" is commonly understood as the act of public evangelising or proclaiming a religious message in public places. It is not, as I have found, a "seminar", within the meaning of reg 1.03(a)(iv), properly construed. Further, there was no evidence before the delegate which showed the applicant intended to visit Australia in order to participate in a "seminar", within the meaning reg 1.03(a)(iv), as I have construed it. For example, on the applicant's website the applicant gave details of his proposed activities. This included the following statements made by the applicant from his website (from page 11 of the Court Book):

(a) "A Man On A Mission: David Lynn is an internationally known street preacher and Pastor that has challenged and defeated almost every theological and philosophical position that has approached him on the streets."

(b) "David J Lynn is a Canadian born Church Planting, Pastoral, and Evangelistic figure who has been used to ignite the fire of Evangelism and Church planting amongst believers around the world."

This also included statements from the applicant's personal Instagram page under the name David J Lynn, which posted on 10 June 2023 that the applicant was undertaking an "Australian Tour for Christ's Forgiveness Ministries", which involved "preaching at public street addresses in Sydney...".

1. Finally, I do not consider the delegate, in making its decision under s 128, either failed to address a question which the Migration Act required. Nor did the delegate make a mistake of law or take into account extraneous reasons or exclude from consideration some factor which would have affected the determination. In my view, the delegate's state of mind was not vitiated by any kind of Avon Downs error.
2. For the above reasons I consider that ground 1 must be rejected.

1. The substance of the applicant's written submissions on ground 2 are contained at [25]-[30] and [35]-[36] as follows (omitting footnotes):

...

1. This is a case where the delegate's decision was specifically targeted and informed by the conduct of the Applicant in exercising his religious beliefs. The Applicant is a Christian preacher, who drew the adverse attention of the delegate for his activities in preaching on the streets of Sydney.

2. The Applicant submits that the delegate's decision is ultra vires the constitutionally implied freedom of religion. In making this submission, the Applicant shall address: first, the nature and foundation of the freedom; second, the burden placed by the delegate's decision on the freedom; and third, that the delegate's decision when scrutinised, is not justified and therefore, is disproportionate.

3. It is the Applicant's contention that by reason of the Constitution's structure - which presupposes civic pluralism and freedom of conscience as conditions of representative democracy - the Constitution implies a freedom to hold and manifest religious beliefs that limits the legislative power of the Commonwealth.

4. The provision relevantly establishes (emphasis added):

[116] The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

1. In the Scientology case, Mason ACJ and Brennan J stated that "s 116 protects both freedom of religious opinion and the free exercise of religion". It is the Applicant's submission that the provision extends to protect both the expression of religious opinion and the exercise of religious belief within Australia.

2. While the Courts have been reluctant to determine that a law which does not have as its express purpose the prohibition of religious exercise will violate s 116, we nonetheless submit that it is open to the Court to find that a law cannot under the colour of general language, permit a delegate of the Minister to make determinations which would otherwise be ultra vires the s 116 prohibition if enacted by the Legislature.

...

Foundation for the Freedom

1. It is the Applicant's submission that the implied freedom of religion is founded by reference to three constitutional pillars:

2. First, its structure, which creates a representative and pluralist democracy. The representative character of the Commonwealth has been recognised by the Court as arising from ss 7 and 24. Religious pluralism and freedom of conscience are structural preconditions for the Constitution's political order: democratic deliberation requires a public marketplace of conscience and religion, and the federal design presupposes plurality of belief and religious institutions.

3. Second, by reference to the letter and spirit of s 116 of the Constitution, which states that the "Commonwealth shall not make any law for... prohibiting the free exercise of any religion...". This we submit, establishing the character of the Commonwealth as fundamentally secular and view-point neutral in matters of religion.

4. Third, the common law which is at the foundation of our constitutional order. It has been long accepted that a court will interpret laws of Parliament in the light of a presumption that the Parliament does not intend to abrogate fundamental human rights and freedoms. This has likewise been accepted to include that there exists a fundamental common law and natural right to have and exercise one's religion without fear of discrimination.

5. The combination of these constitutional pillars gives rise, in our submission, to an implied freedom in respect of religious observance and practice.

1. At the hearing, Mr Maghami submitted that the implied right of freedom of religion was implied from the structure of the Constitution, and this extended rights regarding religious expression of opinions beyond what the High Court had said about the scope of s 116 of the Constitution.
2. Mr Maghami submitted this implied right of freedom of religion was infringed by the operation of s 128 of the Migration Act in this case, and, in particular, by the delegate's decision made under s 128, which had the effect of denying the applicant his right to express his religious opinions as a visitor to Australia under an ETA visa.

1. The substance of the first respondent's written submissions on ground 2 are as follows:
   1. The difficulty for the applicant is that there is no recognised implied freedom of religion in the Constitution. That is not surprising, as s 116 already provides a "fourfold guarantee on religious freedom", which includes proscribing certain laws whose object or purpose is the prohibition of the free exercise of religion: Church of the New Faith v Commissioner for Pay-roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 at 130 (Mason ACJ and Brennan J). The applicant essentially asks this Court to determine that such an implied freedom exists which, in effect, seeks to add a fifth, and much broader, guarantee in s 116 that would undermine the deliberate framing of that section. The applicant has not established any proper basis for such a determination.
   2. A recent attempt in the High Court for the recognition of a new implied limitation was rejected in Babet v The Commonwealth [2025] HCA 21. In that case, the plaintiff sought to have the Court recognise a novel constraint preventing impermissible discrimination against candidates for election. The Court emphasised that the constitutional principles did not support the implication of a separate and distinct limitation beyond those of informed electoral choice and freedom of political communication, and that where a new implication is sought to be recognised from the structure of the Constitution, it is necessary to establish that the implication is "logically or practically necessary" for the constitutional structure ([41]-[42] (Gageler CJ and Jagot J), [121]-[127] (Gordon J), [217] (Gleeson J)). See also [205] (Steward J) and [290] (Edelman J). That requirement ensures that any implication is "securely based" in the text or structure of the Constitution: [122] (Gordon J). The applicant has not established that recognition of an implied freedom of religion is logically or practically necessary for the constitutional structure.
   3. First, the asserted foundation for the freedom (AS [35]) relies in part on the structure of the Constitution, and the "representative character of the Commonwealth". The applicant's argument based on the structure of the Constitution and ss 7 and 24 would require the implied freedom of religion to be linked to responsible and representative government. The applicant argues that "religious pluralism and freedom of conscience are structural preconditions for the Constitution's political order: democratic deliberation requires a public marketplace of conscience and religion, and the federal design presupposes plurality of belief and religious institutions" (AS [35(i)]). The applicant appears to attempt a structural argument similar to that which underpins the implied freedom of political communication: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567; [1997] HCA 25 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
   4. The consequence of basing an implied limitation on such a foundation is that it would go only "so far as is necessary to preserve and protect the constitutionally mandated system of representative and responsible government": see Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [20]; Lange[1997] HCA 25; , 189 CLR 520 at 567. Contrary to that limitation, the applicant asserts that the system of representative and responsible government enshrined in the Constitution supports an additional implied freedom of religion. As submitted above, there is simply no practical or logical necessity for such an implication, particularly given that such an implied limitation would go only "so far as is necessary to preserve and protect the constitutionally mandated system of representative and responsible government". That is, if the constitutionally mandated system of representative and responsible government supports an implied freedom of political communication, the applicant does not explain satisfactorily how, or why, it could be said also to support an implied freedom of religion.
   5. The applicant's reliance on structural elements in the Constitution to support the recognition of this novel implied freedom is misguided. It ignores entirely that s 116 of the Constitution deals expressly with religion, religious observance, and the exercise of any religion. The asserted implied freedom would go beyond and be inconsistent with the express terms of s 116: see Athavle v State of New South Wales [2021] FCA 1075 (Griffiths J) and the authorities cited there.
   6. Secondly, even if the law here could be said in some way to burden an implied freedom of religion (which the Minister denies), on the applicant's own test, s 128 of the Act is plainly "imposed to fulfil a constitutionally legitimate purpose" and any restriction is "reasonably appropriate and adapted to advance that purpose by constitutionally legitimate means" AS [40]. Fundamentally, an alien has no existing right or liberty to enter or remain in Australia absent a visa: Farmer v Minister for Home Affairs [2025] HCA 38 [42] (Gageler CJ, Gordon and Beech-Jones JJ), [88] (Edelman J), [135] (Steward J), [165] (Gleeson J), [216] (Jagot J). Section 128 gives the Minister (or delegate) discretionary power to cancel a visa on particular grounds (none of which say anything about a person's practice or belief in religion). The purpose of s 128 is to control the entry into and stay in Australia of non-citizens, which aligns generally with the object of the Act which is "to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens": s 4(1). The prescribed ground for cancellation for an ETA requiring an intention to stay in or visit temporarily for tourism or business purposes reflects a purpose of ensuring that non-citizens enter Australia only for their stated purpose.
   7. Consistently with other cases which consider s 116 of the Constitution as it relates to provisions of the Act, a law which requires the cancellation of a visa because the person does not fulfil its conditions has nothing to do with the performance of religious beliefs: Re Minister of Immigration and Ethnic Affairs v the Lebanese Moslem Association; Soher Gaber Hamed and Sheikh Taj-Eh-Din Hamed (1987) 17 FCR 373; EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173. There is no condition, for example, which provides as a ground of cancellation that a visa holder adheres to a certain religion, and there can be no reasonable suggestion any of the relevant conditions in the present case are in truth a cover designed to inhibit or regulate the free exercise of religion.
   8. Thirdly, the applicant submits that even if the law is appropriate and adapted, it is not proportionate in its burden of the implied freedom: AS [46]. He submits that the delegate exercised the power "expressly on religious grounds". That submission is misplaced. The delegate did no such thing. The delegate found that a prescribed ground existed, and cancelled the visa, because the delegate was not satisfied that at the time of being granted the visa his intention only was a tourist or business visitor purpose. The applicant's visa was not cancelled because he had engaged in religious activity or had certain religious beliefs.
2. At the hearing, on ground 2, Mr Johnson submitted that the delegate did not make a decision about whether he was engaged in religious activities. Rather, it was submitted the delegate looked at reg 2.43(ea)(i), as at the time of the grant of the visa, and made a decision, based on the evidence at that time, as to whether the applicant had "an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes...", and not whether his intention was to engage in religious activities.
3. Mr Johnson submitted that ss 116 and 128 of the Migration Act had nothing to do with religion, or the restriction of any religious expression.

1. There is no authority under Australian law which supports an implied right of religious freedom under the Constitution either related to, or independent from, s 116 of the Constitution.
2. In Athavle v State of NSW [2021] FCA 105 (Athavle) Griffiths J held at [88]:

As to the applicants' proposition that there is under the Constitution an implied right of religious freedom (either related to or independently of s 116), no authority was cited in support of that proposition. Mr King submitted that the existence of such an implied right was supported by the terms of the Preamble to the Constitution. But that is inconsistent with the decision in Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [13] per Debelle, Sulan and Vanstone JJ where it was held that the reference to "Almighty God" in the Preamble "does not in any way enlarge the meaning and operation of s 116". Moreover, as NSW submitted, no Constitutional implication can be drawn which is inconsistent with the express terms of the Constitution (see MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 at [41]- [42] per Gleeson CJ, Gummow and Hayne JJ and [197]-[198] per Heydon, Crennan and Kiefel JJ; see also Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; 161 CLR 556 at 569 per Gibbs CJ, 579 per Mason J, 615 per Brennan J and 636 per Dawson J, and Gerner v Victoria [2020] HCA 48; 385 ALR 394 at [27]- [29]). The asserted implied right [of religious freedom] would go beyond and be inconsistent with the express terms of s 116. Inconsistency would also arise if s 116, which is expressly confined to the Commonwealth, was extended to the States.

1. I therefore accept the respondent's submission that there is no recognised implied freedom of religion in the Constitution under s 116, either based on the structure of the Constitution, or based on the common law. Further, as the respondent submitted, and I also accept, to the extent there is freedom of religion in Australia, it is limited to what is provided for under s 116 of the Constitution: see Church of the New Faith v Commissioner for Pay-roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 at 130 and Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 40 per Brennan CJ, 60-61 per Dawson J, 86 per Toohey J, 131-133 per Gaudron J and 160 per Gummow J.
2. Under s 116, the High Court is clear, a law is only contrary to s 116 if it has the "purpose" of achieving an object which s 116 forbids: Wertheim v Haddad [2025] FCA 720 at [244] (Steward J). The "purpose" of a law is the "public interest sought to be protected and enhanced" by the law: Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 276 CLR 336 at [102] per Gageler J.
3. As the High Court held in Church of the New Faith v Commissioner for Pay-roll Tax (Vic) [1983] HCA 40; 154 CLR 120, s 116 forbids laws which have the purpose of:

(a) Establishing a religion;

(b) Imposing any religious observance;

(c) Prohibiting the free exercise of religion; and

(d) Requiring a religious text for public office under the Commonwealth

1. The Migration Act does not have any of the four purposes outlined above, in particular it does not prohibit the free exercise of religion. The purpose or the public interest sought to be protected and enhanced by the Migration Act is, "to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens" (see s 4(1) of the Migration Act). It is not to prohibit the free exercise of religion, or any of the other purposes forbidden by s 116.
2. As the first respondent submitted and I accept, s 128 of the Migration Act, which requires the cancellation of a visa because the person does not fulfil its conditions has nothing to do with the performance of religious beliefs, or the free exercise of those religious beliefs.
3. In EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (ELP20) the Full Court considered a similar argument to the one being made by the applicant in this matter, in relation to another provision of the Migration Act. In ELP20, the applicant argued that Pt 9.2 of the Migration Act (and, in particular, s 501CA(3)), was invalid because their effect was to prohibit the applicant from exercising his Christian religion both in Australia and in his country of origin if he were to be removed. He contended that s 116 of the Constitution invalidated those provisions and the administrative steps or decisions taken under it.
4. The Full Court in ELP20 rejected that argument. The Court relevantly held at [48]-[51]:
   1. As the Minister pointed out, neither ss 501(3A) nor 501CA(3) is a law which prohibits the free exercise of any religion. Indeed, neither provision says anything about religion or the manner in which anyone might practise their religion.
   2. We also accept the Minister's submission that the applicant's real complaint focuses upon the effect of his removal from Australia, as is required by operation of s 198(2B) of the Act where the person is an unlawful non-citizen. The fundamental difficulty with the applicant's case and its focus on the effect of his removal from Australia is that it is established that, by reasons of the word "for" in s 116 of the Constitution, attention should be directed to whether the Commonwealth has made a law in order to prohibit the free exercise of any religion: Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 160 per Gummow J (with whom Dawson J agreed on this point and see also Brennan CJ at 40, Toohey J at 86 and Gaudron J at 132-133); see also Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; 146 CLR 559 at 579 per Barwick CJ, 615-616 per Mason J and 653 per Wilson J).
   3. The applicant did not claim that the object or purpose of ss 501(3A) nor 501CA(3) was to prohibit the free exercise of any religion. As emphasised, his case focused on what he claimed to be the effect of that and other related provisions.
   4. Finally, to the extent that the applicant contends that the administrative steps taken pursuant to any of the provisions in Pt 9.2 of the Act infringe s 116 of the Constitution, it is also established law that s 116 is directed only to the making of a law and not with its administration (see Ex rel Black at 580-581 per Barwick CJ).
5. In my view, s 128 (like s 501(3A) or s 501CA(3)) of the Migration Act is not a law which prohibits the free exercise of religion, or religious speech. Consequently, any challenge to s 128 of the Migration Act, or any decision made, or administrative steps taken, under it by the delegate in the present case based on an implied right of religious freedom under the Constitution under s 116 is not arguable and therefore rejected.
6. Further, and for completeness, I also would also reject any argument that an implied freedom of religion arises by reason of the structural elements in the Constitution, or as the applicant submitted, the "representative character of the Commonwealth... arising from ss 7 and 24". There is no authority which supports this argument, and, as the first respondent correctly points out, any asserted implied freedom of this kind would go beyond and be inconsistent with the express terms of s 116 of the Constitution: see Athavle at [88].
7. Ground 2 is rejected.

1. Neither of the grounds of review disclose the delegate committed jurisdictional error.
2. Accordingly, I dismiss the application filed in these proceedings.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.