Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342

1. For the reasons given below, neither of the grounds of the amended application can be accepted. The amended originating application will be dismissed with costs.

1. The Applicant was born on 20 November 1986 and is a citizen of the Solomon Islands. The Applicant first arrived in Australia on 11 September 2001 and after a year returned to the Solomon Islands. He returned to Australia in 2007 and has resided in Australia since.
2. On 20 March 2002, the Applicant was granted a Class BC Subclass 100 Spouse visa.
3. In June 2014, the Applicant commenced a relationship, from which he has two daughters, born in June 2015 and May 2017. In December 2018, a domestic and family violence protection order was made in the Applicant's partner's favour against the Applicant. The Applicant contravened that order in October 2019.
4. In December 2020, the Applicant pleaded guilty and was convicted and sentenced in the District Court of Queensland for serious domestic violence offences against his partner. Those offences were common assault-domestic violence offence, assaults occasioning bodily harm-domestic violence offence and choking suffocation strangulation domestic relationship-domestic violence offence. He was sentenced to two years imprisonment, suspended after serving three months.
5. On 10 February 2021, a delegate of the Minister cancelled the Applicant's visa pursuant to s 501(3A) of the Act, as the delegate was satisfied that the Applicant did not pass the character test, because he was sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) and s 501(7)(c) of the Act) and he was currently serving a term of imprisonment on a full-time basis.
6. On 24 February 2021, the Applicant was charged with contravention of the domestic violence protection order. The Applicant was convicted and sentenced to 12 months imprisonment to run concurrently with his two-year sentence.
7. The Applicant sought that the cancellation decision be revoked. On 29 September 2021, another delegate refused to revoke the cancellation decision. The Applicant then applied to the Tribunal for review of that non-revocation decision. On 17 December 2021, the Tribunal affirmed this non-revocation decision.
8. On 24 June 2022, the Applicant's judicial review application of the first decision of the Tribunal was dismissed: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730. However, an appeal quashed the first Tribunal's decision and the matter was remitted for redetermination: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116.
9. On 12 December 2023, a differently constituted Tribunal reconsidered the Applicant's matter and reaffirmed the non-revocation decision.
10. On 22 April 2024, the second Tribunal's decision was set aside and the matter again remitted back to the Tribunal: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 402.
11. A third differently constituted Tribunal heard the Applicant's matter and set aside the non-revocation decision, delivering reasons on 18 September 2024 (Tribunal Decision), whereby the Applicant was released into the community.
12. On 24 January 2025, the Applicant was notified that the Minister had decided on 16 December 2024 to exercise the power under s 501BA(2) of the Act and set aside the Tribunal Decision and cancel the Applicant's visa. It is this decision of the Minister which the Applicant is now seeking to review.

1. Relevantly, the Decision was made under s 501BA of the Act, which provided (at the time of the Decision) as follows:

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

(1) This section applies if:

(a) a delegate of the Minister; or

(b) the ART;

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

Action by Minister - natural justice does not apply

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

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

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

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

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

Minister's exercise of power

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

Decision not reviewable by application under Part 5

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

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

1. In relation to the power under s 501BA(2), I gratefully adopt the summary provided by Raper J in CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480 at [18]:
   1. As stipulated by s 501BA(2), the Minister is required to form a state of mind about the national interest at the time that the power is exercised. The discretion is broad and evaluative. The Act does not stipulate any factors that the Minister must have regard to when achieving the requisite state of satisfaction regarding whether the cancellation is in the national interest: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; 306 FCR 156 at [44] per Derrington and Hespe JJ; Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61]; Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1 at [20]-[21]. This is so, given "national interest" is a perspective of a largely political nature: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]. By contrast to other provisions, s 501BA(3) specifically removes the obligation to afford a person procedural fairness. However, it has been held with respect to similar provisions, the Minister must reach the requisite state of satisfaction reasonably: Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane Nettle and Gordon JJ.
2. In the circumstances of this case, it is uncontroversial that:

(a) the Tribunal Decision satisfied the requirements of being the "original decision";

(b) the Applicant did not pass the character test as provided for in s 501(6)(a) and s 501(7)(c), for the purposes of s 501BA(2)(a) of the Act; and

(c) the Minister did not afford the Applicant an opportunity to be heard, by making submissions or providing evidence, before making the Decision.

1. The Decision was made on 16 December 2024 and provided to the Applicant under a covering letter dated 24 January 2025. The Applicant was provided with the Decision record itself, an index of relevant material, the statement of reasons and that relevant material.
2. After making some preliminary observations regarding the Applicant, the Minister considered the nature of the power conferred on him by s 501BA of the Act. This empowered him to set aside the decision which revoked the cancellation of the Applicant's visa, if the Minister was satisfied that the person did not pass the character test and that it was in the national interest to cancel the visa. The Minister expressly recognised that he had a discretion not to cancel the visa, even if he was satisfied of the matters regarding the character test and the national interest. The Minister was also aware and recorded that the power under s 501BA was not subject to the rules of natural justice and he could allow the Applicant an opportunity to be heard. However, he elected not to do so.
3. The Minister considered matters relevant to the "National Interest", under two main subheadings, being first "Protection of the community", under which the Minister considered the seriousness of criminal conduct, finding that "the custodial sentences imposed in this case further reflect the very serious nature of the relevant offending". Next, the Minister considered the risk to the Australian community and found that "there remains an ongoing, albeit somewhat reduced, likelihood that Mr MANEBONA will reoffend." Second, the Minister considered under the subheading of "Expectations of the Australian community" that the Australian community expects non-citizens to obey Australian laws while in Australia. Further that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain conduct which would include family violence and violent crimes against women. The Minister found that these expectations would apply in this case. The Minister concluded as follows on the matters of the national interest:

Conclusion on national interest considerations

1. In deciding whether I am satisfied that it is in the national interest to cancel Mr MANEBONA's Class BC Subclass 100 Spouse visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national Interest being in large part a political question.
2. In the specific case of Mr MANEBONA, I find that it is in the national interest to cancel his visa, having regard to his very serious criminal conduct, including family violence offending and violent crimes against women, the very serious risk that he poses to the Australian community if he were to reoffend, and my finding that he poses an ongoing, albeit somewhat reduced, risk of reoffending.
3. Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr MANEBONA's Class BC Subclass 100 Spouse visa is in the national interest.

1. The Minister then considered discretionary considerations under the following subheadings, as follows:

(a) the best interests of minor children - the Minister found it was in the best interests of the Applicant's two children and two nieces not to cancel his visa. This was tempered somewhat due to the family violence conduct engaged in by the Applicant. However, this was still given substantial weight against cancellation.

(b) ties to Australia - the Minister found that the Applicant's immediate family in Australia would experience emotional, practical and financial hardship if the Applicant was unable to remain in Australia. In addition, due to the other social ties the Applicant has established in Australia, those persons would experience hardship should his visa be cancelled. These matters of strength, nature and duration of the Applicant's ties to Australia weighed heavily against cancellation.

(c) legal consequences of the decision - the Minister observed that the Applicant had not made any claims requiring assessment of Australia's international non-refoulment obligations, nor did the evidence suggest otherwise. The Minister also recorded that the Applicant was not covered by a protection finding under s 197C of the Act.

(d) impediments if removed to the Solomon Islands - the Minister considered matters regarding the Applicant's age and health, language and/or cultural barriers and social, medical and/or economic support available in the Solomon Islands. The Minister found that the Applicant's fears in relation to his possible return to the Solomon Islands constituted an impediment and it was afforded moderate weight against cancellation of the Applicant's visa.

1. The Minister concluded that the considerations against visa cancellation were outweighed by the serious national interest considerations, which included the very serious crimes committed by the Applicant, that the Australian community should not tolerate any risk of further harm and the need to protect the Australian community from risks of harm. On this basis, the Minister exercised his discretion to set aside the Tribunal Decision and cancel the Applicant's visa.

Ground 1 - the Minister's findings concerning the Applicant's risk of reoffending

1. The Applicant submits that the Minister's assessment of risk was irrational, illogical or unreasonable. This is on the basis that the finding that the Minister made concerning the Applicant's likelihood of reoffending was based on the underlying concern that notwithstanding engagement in rehabilitative courses, the Applicant will be unable to refrain from substance abuse. The Minister observed that the IHMS records notes his use of alcohol in immigration detention. The Applicant submits that those records were dated by the time of the Minister's decision and that there was no recent material before the Minister demonstrating ongoing use or abuse of alcohol. The material relied on was said to be approximately 18 months old. Moreover, the Applicant submits that the Minister did not have any evidence that the Applicant had engaged in domestic violence offending against anyone other than his former partner (being the mother of his children) and the children who were present at the time of the offending.
2. The Applicant submits that the Minister's reasoning relied on the selective use of dated (old) evidence. This approach, it is submitted, was unreasonable or irrational or illogical, as there was no consideration by the Minister of the age of the material being relied on and there was not any consideration of the Applicant's more recent conduct in the community.
3. The Applicant referred to and relied on the Tribunal's finding that "there is a considerable period where sobriety has been predominantly maintained" (Tribunal Decision at [39]).
4. The Applicant relies on the decision in LJTZ v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 179 ALD 299; [2022] FCA 1209 (Charlesworth J) at [45] and [48] as follows:
   1. The decision presently under review was said by the Minister to have been based in part on his consideration of a body of evidentiary material that he did not in fact consider. In determining what consequences follow for the legality of the exercise of the power, three features of s 501BA(2) assume some importance. The first is that the power must be exercised by the Minister personally. The second is that the rules of natural justice do not apply. The third is a temporal matter: the Minister must identify what the national interest requires at the time that the power is exercised, not what it might have required at some earlier time.

...

1. The Minister was not obliged to invite the applicant to comment on the proposed cancellation of his visa or provide more up to date information. It nonetheless remained necessary for the Minister to make a finding about what the national interest required as at the date of the decision and not at some earlier time. The temporal requirement in s 501BA(2)(b) does not change depending on the extent to which the evidentiary material before the Minister in a given case is out of date. The more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness. Much will depend on the inferences reasonably capable of being drawn about present day circumstances from the dated material.

1. The Applicant submits that the error of the Minister is similar to that in LJTZ in that the task of the Minster is to evaluate the risk at the time of his own decision.
2. However, it must be observed that in LJTZ the Minister did make a positive finding as to a present state of affairs. Further, in LJTZ, the Minister had stated that certain material had been considered, when the true state of affairs was that the material had not been considered at all (see LJTZ at [13], [36] and [63]-[65]). The Court held that it was illogical for the Minister to rely on dated, older material, when he had available to him (in his constructive possession) more up to date information. Furthermore, Charlesworth J stated at [67] in LJTZ that "The better inference is that the Minister failed to have regard to material concerning the content and impact of the courses the applicant in fact attended."
3. That is not this case. The Applicant accepted that there was no more up to date information in the Minister's constructive possession. Further, the Tribunal Decision was before the Minister and was clearly taken into account.
4. The Applicant also relies on the decision of GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 (Bennett J). Her Honour found that the relevant decision was infected by error on two bases. First, on a concession that the Minister accepted that the minimisation of certain incidents indicated little remorse, was irrational or illogical (GRCF at [20]), but that such matters were not material. Bennett J held that such findings were material (at [25]-[31]). Secondly, that the Minister purported to analyse the Applicant's steps towards rehabilitation at the time of the decision, proceeding on the basis that GRCF had continued not to seek psychological treatment or counselling. Proceeding on this positive basis that the position was the same at the time of the Minister's decision as it was 10 months earlier, was to fall into error (GRCF at [50]-[52]).
5. The Applicant submitted that the Minister fell into a similar error by using the following words, emphasising the word "continued" (Decision at [42]):

...However, I remain concerned that MR MANEBONA will be unable to refrain from substance abuse, particularly noting the IHMS records regarding his continued use of alcohol while in immigration detention and notwithstanding his engagement with rehabilitative programs and courses.

1. The Applicant also submitted that by the Minister stating at [94] of the Decision "he has been" was a present tense finding covering the entire period of immigration detention. The sentence relied on stated the following (Decision at [94]):

...I have also noted Mr MANEBOA's engagement with rehabilitative programs and courses, as well as the material indicating that he has been unable to refrain from using alcohol while in immigration detention.

1. This, the Applicant submitted, was a current finding of what the Applicant was unable to refrain from doing. Such matters, the Applicant contends, were not supported by the evidence because that latest allegation of alcohol use whilst in immigration detention was 18 months prior and it is submitted that the Minister conducted his assessment at the time of his decision as if the evidence was up to date. Alternatively, the Minister conducted his assessment at that earlier time. Either way, the Applicant submits this was to fall into error.
2. The Respondent submits that the suggested interpretation should be rejected as there is nothing in the Minister's reasons which properly supports a conclusion that the Minister conducted his risk evaluation in the way contended by the Applicant. The Respondent also observes that the Minister's decision was only two-and-a-half months after the Tribunal Decision and hence since the Applicant was released from immigration detention.
3. The Respondent, quite properly, noted that the references by the Minister to the "IHMS" records is likely to be a typographical error or an error of misdescription, as the relevant records were that of "Serco". The Applicant, again quite properly, did not contend that this error on the face of the Minister's Decision was such as to give rise to a jurisdictional error. The Applicant accepted that there were detention records and reports, of the kind described by the Minister, and those records and reports were before the Minister.
4. In relation to the principles to be applied, when considering grounds of illogicality or irrationality, I gratefully adopt the recent summary of his Honour Justice Derrington in AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1379 at [46]- [48], as follows:
   1. In analysing this ground, it is apt to keep in mind that the courts generally exercise considerable caution when faced with a claim of illogicality or irrationality given that they can be used to conceal what is in truth simply an attack on the merits of a decision-maker's finding: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210, 221 - 222 [56]. It should also be kept steadily in mind that the threshold standard to establish illogicality or irrationality is "very high": MZYOI v Minister for Immigration and Citizenship [2012] FCA 868; (2012) 130 ALD 256, 283 [165]. Further, it is often said that the Court should not lightly be satisfied of the existence of illogicality or irrationality, which is only made out in cases where there exists what is termed "extreme" illogicality or irrationality: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496, 517 - 518 [60] - [61] (CQG15). The reference to "extreme" carries the implication that the decision under consideration is one that no logical or rational decisionmaker could come to: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647 - 648 [130] - [131] (SZMDS). That necessarily excludes cases where logical and rational minds can differ as to the outcome.
   2. Moreover, and importantly in this case, the relevant illogicality or irrationality must arise at the point of the ultimate decision made: SZMDS at 647 [129]. Whilst some illogicality in fact finding might occur, if a reasonable decision-maker could reach the same conclusion by a different route, it is unlikely that the resulting decision is irrational.
   3. Therefore, a finding that such an error infected the factual determination reached along the way to the ultimate decision will usually only result in jurisdictional error where it is critical to the ultimate conclusion or end result: CQG15 at 517 - 518 [60] - [61]; CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493, 505 - 506 [35] - [36].
5. Also relevant is the recent observation of his Honour Justice Wigney in Smith v Minister for Immigration and Multicultural Affairs [2025] FCA 952 at [50]:
   1. ...Illogical or irrational reasoning may support a finding that the resulting decision was legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. Illogicality or irrationality in this context, however, must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124], [129]-[131]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must generally be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions": Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]; see also SZMDS at [96], [131].
6. In relation to legal unreasonableness, it does not depend on a "definitional formulae or one verbal description rather than another": Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [2] (Allsop CJ, Griffiths and Wigney JJ). There are two different contexts in which the concept of unreasonableness can be employed: firstly, a conclusion after the identification of jurisdiction error for a recognised species of error or an error in process, and secondly, an "outcome-focused" conclusion: Stretton at [6]-[9], [12]-[13], [61(c)] and [91]-[92]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh 2014) at [44] (Allsop CJ, Robertson and Mortimer JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [27]- [28] and [72] (French CJ); Smith at [48]. There is only one correct answer to the question of legal unreasonableness: Minister for Immigration and Multicultural Affairs v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [18] (Kiefel CJ), [20], [60] (Gageler J), [76] and [117] (Nettle and Gordon JJ). Findings of legal unreasonableness are rare: Li at [113]; Stretton at [4]-[5], [61(d)] and [58]-[65]. That is, in part, because it is a demanding standard which is required to establish legal unreasonableness. The question of whether a decision is legally unreasonable is directed to whether or not the decision or action is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful having regard to the scope, purpose and subject matter of the statutory source of power; this can be when the decision lacks an "": at [76]; at [10] and [82], (2019) 267 FCR 200; () at [61] (Reeves, O'Callaghan and Thawley JJ).
7. There is an area of "decisional freedom": Stretton at [7] and [92], or "genuinely free discretion": Stretton at [56]; SZVFW at [51] and [97], within which reasonable minds might differ. That is not sufficient to establish error on the basis of legal unreasonableness. That reasonable minds may differ as to the exercises of that discretion is not legal unreasonableness: Stretton at [7], [22], [92] and [101]-[102]; Li at [28]; SZVFW at [155]. Further, in terms of outlining the relevant principles, a conclusion of legal unreasonableness might be drawn if the decision is plainly unjust, arbitrary, capricious or lacking in common sense: Stretton at [11], [87] and [90]; Li at [28] and [110]; Singh 2014 at [44]; Singh 2019 at [61], however an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10], [82]; Li at [68].
8. Although the Minister's decision was only two-and-a-half months after the Applicant was released from immigration detention, the records from that detention which variously reported the actual and suspected consumption and creation of alcohol while in detention were dated 20 December 2021, 14 October 2022, 8 March 2023 and 23 July 2023. That last report being approximately 18 months before the Minister's Decision. As such, I do not accept the Respondent's submission that the temporal considerations should be considered in a context of a period of only two-and-a-half months:

The Applicant has selected and focused upon two particular sentences of the Minister's Decision, the first at [42], which is under the heading "Conclusion on risk to community". The second at [94] under the heading "CONCLUSION", this being the overall conclusion of the Minister. The Minister's Decision must be read as a whole and not with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271- 272 (Brennan CJ, Toohey J, McHugh J, Gummow J and Kirby J). It must also be viewed in the context of the nature and scope of the Minister's power under s 501BA(2) of the Act.

1. The Minister first dealt with "Risk to the Australian community" from [32]-[43] of the Decision. The Minister commenced this section of the Decision with some opening observations regarding the seriousness of the Applicant's offending and states the task he is going to undertake as (at [33]):

In assessing the likelihood of Mr MANEBONA's reoffending in the future, I have considered available information as to matters that have contributed to Mr MANEBONA's past conduct, as well as indications of remorse and the extent of Mr Manebona's rehabilitation, including his more recent conduct in immigration detention, where relevant information is available.

1. By this framing there is a manifest recognition that the matter being considered, now, is the future likelihood of the Applicant's reoffending and that is based on matters from the Applicant's past. Furthermore, there is recognition that the Applicant's conduct in immigration detention is more recent than the Applicant's conduct involving his criminal offending. There is also express recognition that this is considered in circumstances where the Minister is not obliged to offer the Applicant an opportunity to be heard and has decided not to afford him that opportunity. That is, it is considered where relevant information is available. The reference to "more recent" in this context is not a misdescription or misunderstanding by the Minister that the conduct in immigration detention is "recent", in a temporal sense to the making of his decision, but it is more recent than the criminal offending which is relevant to the assessment of risk.
2. The Minister considers and takes into account "Factors contributing to past conduct". These matters are clearly recognised by the Minister as being historical events and circumstances. This is so, by the express reference to these being matters being considered together as matters of "past conduct". Further, the Minister observed that "at the time of his family violence offending", the Applicant was under the influence of alcohol. The Minister had earlier considered when the Applicant's offending took place and expressly referenced the sentencing remarks of 9 December 2020. Linking these matters together also provides recognition by the Minister of these matters being occurrences of the Applicant's conduct in the past and a recognition of when in the past those matters occurred. The Minister also referred to the sentencing judge's findings that the Applicant was in a toxic relationship with the victim which involved alcohol being used by both parties. Again, by linking the alcohol use to the offending demonstrates the historical nature of these considerations. The Minister also referred to the Applicant's childhood trauma, clearly a historical matter.
3. The Minister then considers matters under the heading of "Remorse and rehabilitation". These considerations included the completion of various programs and courses, including those directed towards family violence, anger management and substance abuse, as well psychological support. It is unnecessary to list the dates of all of the courses and programs undertaken by the Applicant. It is sufficient to note that these were variously dated from October 2019 to April 2024, however, with none being undertaken in 2020 and only two in late 2021. These are expressly referenced in the Decision. The Minister also considered the Applicant's written letters of remorse and his asserted willingness to engage in further rehabilitation. The records of the Applicant's conduct while in detention, which included possession and consumption of alcohol, the possession of suboxone strips, the use of aggressive language and damage to Commonwealth property. Implicit in such specific references to what was recorded in those reports while the Applicant was in immigration detention is a recognition that these documents record incidents of these events occurring at the time recorded, not that the Applicant was continually engaging in this kind of conduct. The language used of "was found" and "on multiple occasions" also supports this recognition. The report of Dr Kwok, the Mental Health Practitioner, was dated 18 July 2021. Dr Kwok assessed the Applicant's risk of reoffending as moderate if he did not engage in treatment. However, as he had begun to seek intervention, the assessed risk was moving towards a lower risk. The sentencing remarks were dated 9 December 2020. Apart from the express reference to the Applicant being willing to engage in further rehabilitative courses in the future, the language used, the reference to particular dates and events all support a recognition, consideration and understanding of the Minister that such circumstances occurred at a particular point in time, are historical and were not a continuum of conduct. Particularly, in relation to the possession of what was presumed to be homebrew, which was described as being on "multiple occasions", demonstrates that this matter had occurred at a particular point in time and on several occasions.
4. The Minister also considered the findings of the Tribunal in its decision dated 3 September 2024 (Decision at [36]). Relevantly, the Minister expressly referred to the Tribunals' finding that "Mr MANEBONA has not demonstrated a sustained abuse of alcohol over the three-and-a-half years that he was in detention, and therefore that there is a considerable period where his sobriety has been predominantly maintained". The Minister observed that "Mr MANEBONA has a very strong incentive to stay away from alcohol and drugs, particularly due to his children's ongoing need for care". The Minister also recorded the Tribunal's acceptance that he "understands the connection between drug/alcohol misuse and his violent offending, and his understanding is an important aspect of the risk measurement task".
5. It is after considering these matters, that the sentence from [42] which the Applicant complains, is recorded. It is worth setting out that sentence in the context of the whole paragraph, which is as follows:
   1. A number of factors, as outlined above, may have contributed to Mr MANEBONA's offending behaviour. l note that his previous substance abuse appears to have contributed to much of his criminal offending and note his assertions that he was in a toxic relationship with the victim of his family violence offending. However, I remain concerned that Mr MANEBONA will be unable to refrain from substance abuse, particularly noting the IHMS records regarding his continued use of alcohol while in immigration detention and notwithstanding his engagement with rehabilitative programs and courses. I have found that, on balance, there remains an ongoing, albeit somewhat reduced, likelihood that Mr MANEBONA will reoffend.
6. The Minister's use of the word "continued" in this context was not a finding by the Minister that the Applicant has continually, without cessation, used alcohol while in immigration detention. It is a finding that the Minister remains concerned as to whether the Applicant will be able to refrain from substance, including alcohol abuse. This is particularly in circumstances where the Applicant has, in a controlled environment, being immigration detention, and even having undertaken rehabilitative courses, during the same period, still used alcohol on several occasions. That is, he has continued to use alcohol in the sense that he has not completely refrained from using alcohol.
7. In so far as the Applicant submits that this is a current finding. I do not accept that submission. The Minister in this paragraph links the use of alcohol with his time in immigration detention. That demonstrates a recognition of the use of alcohol being considered when the Applicant was held in immigration detention. Still using alcohol occasionally, while in a controlled environment and at times completing relevant rehabilitative courses, does provide a logically probative basis for the Minister's concern, at the time of making the Decision, that the Applicant will be able to refrain from substance abuse, in the future.
8. The Applicant also relies on a sentence in [94] of the Decision. The overall conclusion of the Minister in making his Decision is set out from [89]-[98]. Not only does the sentence relied on by the Applicant need to be read in the entirety of the concluding paragraphs, but given it is the conclusion, it must be read in the context of the reasons as a whole.
9. The whole of [94] states as follows:
   1. I have given very significant weight to matters weighing in favour of cancellation. In doing so, I considered the very serious nature of the crimes committed, which include family violence offences and violent offences against a woman. I have also noted Mr MANEBONA's engagement with rehabilitative programs and courses, as well as the material indicating that he has been unable to refrain from using alcohol while in immigration detention.
10. Manifest in this paragraph is a consideration that while the Applicant was in immigration detention he was "unable to refrain from using alcohol". The reported incidents of the Applicant using, possessing and consuming alcohol, on various occasions, while in immigration detention, means that such a finding was open to the Minister, in the exercise of his broad and evaluative power. Placing the emphasis, as the Applicant does, only on the words "he has been" is to seek to narrowly construe the particular words used in the Decision, without regard to the rest of the words in the sentence, the balance of the paragraph, and then this paragraph in the context of the entire Decision. This is particularly so as this paragraph is described as part of the conclusion. Such concluding statements should not be read in isolation.
11. Furthermore, these words do not support a contention that the Minister was making a current finding that the Applicant was unable to refrain from using alcohol at the time the Minister made his decision. It is clearly a historical observation pertaining to when the Applicant was in immigration detention. The sentence is referring to a particular period of time, that being while the Applicant was in immigration detention. Moreover, there are several references by the Minister in the Decision which demonstrate that the Minister had elected not to afford the Applicant an opportunity to be heard and therefore, all of the material had some historical aspect, and there may be gaps in the material available (Decision at [8], [33], [37] and [71]. In this regard, I agree and adopt the following observation of Charlesworth J in Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 at [13]:
    1. The source of the power in the present case is s 501BA(2). It is a power that can be lawfully exercised without affording the affected person an opportunity to be heard irrespective of whether unfairness in the ordinary sense may result. By precluding an obligation to afford an affected person a right to be heard, Parliament may be taken to contemplate that the Minister's decision may lawfully be made in the absence of factually relevant information which the affected person might otherwise be in a position to provide, including information that is more up-to-date than that in the Minister's possession. If it be within the scope of a power to proceed in an unfair fashion, it must follow that the resulting decision cannot be affected by legal unreasonableness merely by virtue of that unfairness. Expressed another way, the statutory intent to be discerned from s 501AB(3) is that the power in s 501AB(2) can lawfully be exercised in a manner that is procedurally unfair. Unfairness of that kind is within the scope of the power.
12. The Applicant did not submit that the Decision or the process was unfair and did not submit that the Minister erred by not having or obtaining more up to date information.
13. The Minister has not fallen into the kind of errors which were found in GRCF or in LJTZ. The Minister has relied on historical matters to inform him about past conduct. He has been aware of the historical nature of the conduct and that some such conduct, being his use of alcohol, has been engaged in on multiple occasions, at particular points in time. Given the accepted correlation between the Applicant's offending and the use of alcohol, the Minister has referred to that historical alcohol use, particularly in the context of that use being in a controlled environment, (immigration detention) and undertaking rehabilitative courses around the same time. This has led the Minister to conclude, that at the time of his decision he remained concerned that the Applicant will be unable to refrain from substance abuse, in the future.
14. Further, in so far as the Applicant submitted that the Minister relied on selective material, it was open to the Minister to give what weight he regarded as appropriate and to rely on such material in exercising the broad and evaluative power under s 501BA(2) of the Act.
15. The Applicant also submitted that the Minister did not have any evidence before him that the Applicant had engaged in domestic violence offending against anyone other than his former partner (and children who were present). The Applicant submits that the Applicant had resided in the community for several months with no evidence of any adverse incident. However, there was no material before the Minister beyond the date of the Tribunal Decision. The Minister had decided not to afford the Applicant an opportunity to be heard. Therefore, it is more correct to say there was no evidence regarding the Applicant's conduct in any respect since he had been living in the community. This submission was not developed such as to support a submission of why or how then the Minister was the subject of jurisdictional error. There is nothing illogical or irrational that the Applicant may pose a risk to a future partner and that that partner would be a member of the Australian community.
16. On a proper consideration of the Minister's reasons for his decision, with regard to the nature and scope of the Minister's power under s 501BA(2) and the applicable principles of illogicality or irrationality and legal unreasonableness, this ground can not be accepted.

Ground 2 - the legal consequence of the Minister's decision

1. The Applicant submits that by exercising the power under s 501BA(2) of the Act, the Minister was required to consider the direct and immediate or inevitable legal consequences. While the Applicant accepts that he did not make any protection claims that would engage any non-refoulment consideration, the direct consequences of an adverse decision included that:

(1) as an unlawful non-citizen, he would be liable to removal under s 198 of the Act;

(2) he would be liable to be detained under s 189 pending removal; and

(3) he would be subject to s 501E of the Act, that is, permanently excluded.

1. The Applicant refers to the part of the Decision headed "Legal consequences of the decision" and submits that there is an absence of the Minister considering the above matters which are legal consequences of the Decision. However, it is apparent from the Applicant's submissions, that it is accepted that the balance of the Decision supports an acceptance that the Minister was aware of and considered the legal consequences or effect of an adverse decision would be the removal of the Applicant from Australia. That is the first matter raised by the Applicant.
2. However, the Applicant submits that the Minister failed to consider the consequence of mandatory detention or the operation of s 501E of the Act.

1. The Applicant commenced with the principles derived from Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 (Kenny, Flick and Griffiths JJ) at [84] and [88], which relevantly state as follows:
   1. The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. There is no difference in this regard between an exercise of power under s 501(1) of the Migration Act and an exercise of power under s 501(2) or s 501(3): see also AZAFQ v Minister for Immigration and Border Protection (2015) 147 ALD 121 at [11], in which White J applied NBMZ to s 501(2). Furthermore, at a functional level, the human consequences of a decision under each of these three provisions may be equally grave. The difference between them is that the possibility that the Minister may act without regard to a decision's human implications is more likely under s 501(3) than under s 501(1) and (2), because of the absence of a procedural fairness requirement with respect to decisions under s 501(3) (see s 501(5)), with the result that the Minister may lawfully make a decision under s 501(3) without the benefit of any information the visa holder might contribute. It follows that, in making a decision under s 501(3), the Minister is obliged to take into account the direct and immediate statutory consequences of the decision. These consequences include those set out in s 501C, which in terms applies "if the Minister makes a decision under subsection 501(3) ... to ... cancel a visa".

...

1. ...The premise for the finding of jurisdictional error here is that, in order for there to be a lawful exercise of a discretionary statutory power, the decision-maker must have regard to the statutory framework in which the provision conferring the power sits. This framework includes the direct and immediate statutory consequences of an exercise of the power.

1. Recently, in the context of a decision under s 501BA(2), Burley J with reference to Taulahi held that the Minister is, however, required to have regard to the direct legal consequences of his decision in exercising his discretion under s 501BA of the Act, rather than the indirect consequences: BTLD v Minister for Immigration and Multicultural Affairs (2025) 310 FCR 606; [2025] FCA 600 at [21] (Burley J). Also see CMP25 at [27]. Further, to that I agree with the additional observations of Raper J in CMP25 at [28], that care must be taken when considering certain paragraphs of one migration decision and seeking to apply them to another. The relevant factual circumstances will often be different and the statutory framework of one decision, may be different to another, and that will often affect the relevant principles to be applied. Without being exhaustive, but relevantly, matters requiring satisfaction of the "national interest" are in a different statutory context.
2. The Applicant also relied on AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586; [2024] FCAFC 103 at [33] and [34] (Murphy, Stewart McEvoy JJ), which concerned a decision under s 501A(2) of the Act, which refused that applicant a protection visa. The error of law found in AJN23 was found to flow because the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) overruled Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, in so far as s 196 of the Act had to be read down to be valid under Chapter III of the Constitution. NZYQ did not change the law, the constitutional principles enunciated must be understood as applying however, retrospectively (NZYQ at [12] and [32]-[34]).
3. The Applicant submits that the Minister failed to consider the "direct and immediate statutory consequences" of the Decision, by not considering the impact of mandatory detention. It was not submitted that the Applicant would be subject to indefinite detention.
4. A non-citizen in the migration zone who holds a visa is in effect a lawful non-citizen: s 13 of the Act. A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen: s 14 of the Act. This has been described as being a binary structure, in which non-citizens are divided into two groups, being "lawful non-citizens" and "unlawful non-citizens": Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; [2012] HCA 46 at [176] (Hayne J). Hayne J went on in Plaintiff M47/2012 to describe it thus (at [177]-[178]) (footnotes omitted):
   1. The Act spells out the consequences that follow from being a lawful non‑citizen or an unlawful non‑citizen. Generally, an officer is bound to detain a person whom the officer knows or reasonably suspects to be an unlawful non‑citizen. Subject to the possibility of the Minister making a "residence determination" under s 197AB, s 196(1) requires that an unlawful non‑citizen detained under s 189 of the Act "be kept in immigration detention until he or she is" removed from Australia, deported or granted a visa. An officer is bound to remove "as soon as reasonably practicable" an unlawful non‑citizen who has been detained, has not subsequently been immigration cleared, and has no valid application for a visa that has not yet been finally determined.
   2. The Act provides no middle ground between being a lawful non citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non citizen, who may, usually must, be detained and who (assuming there is no pending consideration of a valid visa application) must be removed from Australia as soon as reasonably practicable. These consequences - remaining in Australia on the one hand and detention followed by removal from Australia on the other - follow once the central question has been answered: is the person a lawful non citizen or an unlawful non citizen? That question depends upon whether the Minister grants or refuses to grant a visa or, if a visa has previously been granted, whether that visa has since been cancelled.

Also see Commonwealth of Australia v AJL20 (2021) 273 CLR 43; [2021] HCA 21 at [13]- [15] (Kiefel CJ, Gageler, Keane and Steward JJ).

1. The passages of the Applicants' statement relied on, in relation to immigration detention, are submitted to have not been considered by the Minister, in terms of considering the direct and immediate statutory consequence of being held in immigration detention, should the visa be cancelled. Two of the paragraphs relied on were in the Applicant's statement under a heading of "Risk of Reoffending". The first paragraph relied on stated as follows:
   1. Additionally, I harbor very deep fear of returning to prison or immigration detention in future. I have personally witnessed numerous instances of violence among detainees and have myself been a victim of serious assaults in immigration detention. These environments are profoundly unsafe, and I am resolute in my determination to avoid any actions that could lead me back to these perilous conditions in the future.

1. The Applicant also relies on another paragraph from his statement that was before the Tribunal. That paragraph was under the heading "Current circumstances" and stated that the Applicant was currently in immigration detention and that he was finding it challenging. That was the situation of the Applicant at the time the matter was being considered by the Tribunal.
2. The Applicant submits that these matters, together with the statutory requirements, meant that that Minister had to consider the direct and the immediate statutory consequences, being that the Applicant would be liable to be detained in immigration detention. The Applicant submits that nowhere does the Minister refer to or assess the relevant consequence of mandatory detention. The Applicant also submits that the proper inference to be drawn, therefore, is that the Minister failed to consider this matter or misunderstood what legal consequences would follow.
3. The Applicant bears the onus of establishing that this was not considered, on the balance of probabilities: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). Drawing any appropriate inferences falls to be evaluated regarding that the statement of reasons must be read fairly and not in an unduly critical manner and that the statement of reasons must be read in light of the content of the statutory obligation pursuant to which it was prepared: BVD17 at [38]. Further, that any inference that the Minister has not engaged in an active intellectual process, that is by failing to consider a relevant matter "will not lightly be made and must be supported by clear evidence": Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48] (Griffiths, White and Bromwich JJ). A mere non-reference in a statement of reasons for decision, does not necessarily mean the matter was not considered, however, it may entitle the Court to infer it was not considered to be material by the Minister: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [31] (French CJ and Kiefel J): Minister for Immigration v EEI17 (2018) 261 FCR 461; [2018] FCAFC 166 at [49] (McKerracher, Gleeson and Burley JJ). This is particularly in circumstances where the issue has been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2015) 236 FCR 593; [2003] FCAFC 184 at [47] (French, Sackville and Hely JJ).
4. By Paragraph [40], the Applicant is clearly providing reasons why his risk of reoffending in the future is diminished. The Applicant is stating that his motivation for not relapsing is that he understands that should he engage in future criminal conduct, he may be sentenced to prison and/or have visa cancelled which is likely to render him liable for immigration detention. The Applicant states he has had a bad experience in each of those facilities and as such this provides a powerful motivator for him to not re-offend.
5. In so far as this is the meaning to be conveyed by this paragraph, it was considered and taken into account by the Minister (Decision at [38]), in relation to considering "Risk to the Australian community". At [38] of the Decision, in the context of considering risk to the Australian community, the Minister records that the Applicant "understands that any return to offending will result in further incarceration, which will inevitably result in the cancellation of his visa, a return to immigration detention and almost certain deportation in due course...".
6. Furthermore, in so far as the Applicant submits that there is no reference by the Minister of a return to immigration detention, I do not accept that submission, because there is clearly a reference to the Applicant returning to immigration detention and of course that being such a consequence in [38] of the Decision.
7. In so far as the Applicant submits that the Minister does not consider or assess the relevant consequences of mandatory detention, I also do not accept that submission for the following reasons.
8. The Minister signed a document on 16 December 2024, headed "Submission", in which the Minister elected and selected (in hand) that he wished to consider exercising his power under s 501BA of the Act, that he would do so without natural justice being afforded to the Applicant, and that the Minister had signed and selected his decision. That Submission states that the decisions recorded were after considering the Submission and all of the attachments. Further, on the decision page, which is again signed by the Minister, it also records the time at which the decision is made, the place and the total time taken. The time taken in making the decision is recorded as being the total time taken in considering the Submission and attachments. The Submission records the following:
   1. A decision to set aside the decision of the AAT and cancel Mr MANEBONA's visa will result in him becoming an unlawful non-citizen, liable for immigration detention under s189 of the Act. Following such a decision, the Department of Home Affairs (the Department) will give Mr MANEBONA notice of your decision and take him into immigration detention. Once detained, unless a new visa is granted, Mr MANEBONA will be liable to removal from Australia as soon as reasonably practicable and, in the meantime, liable to detention under s189, provided that removal is practicable in the reasonably foreseeable future, or until granted a visa. If you do not cancel Mr MANEBONA's visa, he will remain in the community.
9. A review of the Minister's Decision makes plain that he was aware that he was considering whether to set aside the Tribunal Decision and cancel the Applicant's visa. A legal consequence of that, again plain on a reading of the reasons as a whole, is that the Applicant will be deported. This is the underlying rationale for the Minister considering, as part of exercising his discretion, the matters which follow if the Applicant's visa was cancelled and the Applicant was deported from Australia. The issue of the Applicant being returned to immigration detention has been identified at some way in the Decision and it was a matter expressly raised in the Submission, which was considered. The better view then is that the Minister considered that the Applicant would be liable to mandatory detention, but as there was no evidence or submission that the detention would be prolonged or indefinite, the Minister did not regard it as material. The Minister also recorded that the Applicant had no outstanding application for a protection visa, which would further support a view that any detention prior to removal to the Solomon Islands would not be prolonged or indefinite.
10. As such, no jurisdictional error arises on this basis.

1. Secondly, the Applicant argued that the Minister did not consider the legal consequences that the Applicant would be subject to the operation of s 501E of the Act. In oral submissions (not being referred to in the written submissions) this was sought to be extended to also include cl 5001 (d), in terms of the special return criteria. It was framed in the particulars of the Amended Originating Application as a "permanent exclusion from Australia", which was the focus of the Applicant's submission. The Applicant relied on DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 and submitted that there was not a ratio which binds this Court as the decisions of Flick J and Bromberg J were disparate and the decision of Snaden J was not useful on this issue. The Applicant also relies on a decision of Logan J in Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637 to support this submission.
2. Flick J at [15] in DLJ18 stated as follows:
   1. First, to employ the language used in NBMZ, the "statutory (that is, the legal) consequences" ((2014) [2014] FCAFC 38; 220 FCR 1 at [7] per Allsop CJ and Katzmann J) that were mandatory relevant considerations in the present proceeding are most probably confined to those "consequences" expressly or implicitly imposed by the Migration Act itself; the "consequences" imposed by the Migration Regulations would most probably fall outside of those matters which must necessarily be taken into account. Any future decision to be made pursuant to cl 5001(c) of Sch 5 to the Migration Regulations could well be characterised as dependent upon a "speculative" future application and as a decision extraneous to those "consequences" imposed by the Migration Act. Expressed differently, and to employ the language of Jessup J in Tanielu, a decision made pursuant to cl 5001(c) of Sch 5 to the Migration Regulations would lack "legal proximity" to those decisions made under the Migration Act. To this extent, concurrence can be expressed with the approach more generally expressed by Jessup J. As observed by Perram J, it "will rarely be possible to discern from the subject matter, purpose and scope of the relevant statute that matters of speculation are mandatorily to be taken into account": Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139 at [18].
3. However, Bromberg J relevantly held as follows (at [28]):

...Considered through the prism of the subject-matter, scope and purpose of the Migration Act and, bearing in mind that the legal consequence in question flows directly from regulations made to give effect to that Act, the consequence for a person the subject of a non-revocation decision that he or she would be precluded from returning to Australia is, in my view, clearly within the ambit of the statutory framework that the maker of a non-revocation decision has to have regard to.

1. The Applicant also relied on the decision of Logan J at [43]-[46], where his Honour sets out portions from the reasons of each of Flick J, Bromberg J and Snaden J and observes at [46] that the views are "truly disparate".
2. In DLJ18, Flick J commenced at [6]-[7] with the uncontroversial proposition that the process of statutory construction must be undertaken first and then applied to the facts and circumstances of a particular case. Further, Flick J stated that not all of the reasoning in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154; [2014] FCA 1221 (Jessup J) can be accepted. Observing this, then at [15] of DLJ18 (set out above), it is clear that Flick J was not wholly in disagreement with the reasoning of Jessup J in Tanielu. That is, Flick J agreed with the reasoning of Jessup J that matters of "speculation" relying on cl 5001(c) lacked the required "legal proximity" to be of a kind of legal consequences that required consideration as described in NBMZ.
3. To this can then be added the observation of Bromberg J at [24] in DLJ18, whereby his Honour agreed that "practical immediacy" imposed an unnecessary and unjustifiable gloss on the principle in NBMZ (also see [27]). However, Bromberg J was content that "legal proximity" was not extraneous to the requisite assessment. Bromberg J continued at [25]-[26] to consider whether the assessment can be undertaken by a reference to "proximity", with reference to Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523; [2018] FCAFC 68 (Roberston, Moshinsky and Bromwich JJ) and Taulahi and was content that such a concept was consistent with the approach in those authorities. That was particularly noting the "direct and immediate" reference in Taulahi.
4. Finally, then Snaden J, who stated at [80] that he disagreed with the other members of the Court that Tanielu is wrong and ought not to be followed. His Honour considered Tanielu correct and compelling. Snaden J relevantly observed at [85]:
   1. I do not read Jessup's J observations in Tanielu as anything more than a recognition that there will be some consequences that arise by operation of law from the exercise of a statutory power that are of such a nature that a failure to consider them won't invalidate that exercise. That is a proposition that the appellant accepts as true and for which the authorities record support: BHA17 at [135] (Robertson, Moshinsky and Bromwich JJ); DYY18 v Minister for Home Affairs [2019] FCA 1901 at [22] (Steward J). Consequences that, for a particular visa-holder (or former visa-holder), are remote, theoretical or contingent - or that, as Jessup J put it in Tanielu, lack sufficient "legal proximity" or "practical immediacy" to the circumstances surrounding the decision from which they arise - strike me as salient examples.
5. That is, on this basis of each of the reasons of the members of the Full Court in DLJ18, there is a common thread of reasoning regarding an appropriate use of the "legal proximity" as regards the kind of legal consequences which are mandatorily relevant in the NBMZ sense. It is apparent that the ultimate conclusion, although by way of a different path of reasoning, of both Flick J and Snaden J was that it was not a mandatory relevant consideration to consider the special return criteria in cl 5001(d).
6. However, it is not necessary to consider whether I regard Logan J to be plainly wrong in relation to what were described as "truly disparate" views of the members of the Full Court in DLJ18: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J); CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 at [255]- [262] (Wheelahan J) and the authorities referred to therein; cf Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 3) [2025] FCA 1179 at [145]- [147] (Jackman J). This is because, as considered below, the substance of the Minister's Decision has considered that the Applicant will be permanently excluded from Australia, even though there is no express mention of s 501E or cl 5001.
7. Having said that, and before leaving DLJ18, there is an obvious analogy in relation to considerations which might be said to be required by way of s 501E and cl 5001. Each require speculation as to whether or not an application for a particular kind of visa might be made. That is, such consequences require an additional step, which is a step of an applicant to undertake. The legal consequences which require consideration (from NBMZ and Taulahi) are those which are the direct and immediate statutorily prescribed consequences of the decision in contemplation. The direct and immediate consequence, prescribed by the Act of the Minister's decision under s 501BA, is that when an applicant's visa is cancelled, they will be detained as an unlawful non-citizen and will, as soon as reasonably practicable, be removed from Australia. It seems to be argued that a direct and immediate consequence is that an applicant may be unable make an application for a visa which is not a valid application for a visa, and hence is not to be considered, due to the operation of s 45, s 46(1)(d)(vi), s 47 and s 501E of the Act. However, s 501E(2) provides that subsection (1) does not prevent a person, at the time of application, making an application for a protection visa or a visa specified in the regulations for the purposes of the subsection. Hence, the consequences of the section are not direct and immediate, as it is dependent on the actions of an applicant, in terms of what visa they apply for. As s 501E of the Act is not a complete absolute bar to the making of a visa application, such that as a direct consequence of the decision under s 501BA, the application for a visa will not be considered a valid application for a visa, in all circumstances. This is also apparent because s 501E(1A) provides for what occurs in relation to the Minister's decision to refuse to grant a visa to the person, as mentioned in paragraph (1)(a) of that section. The Applicant did not identify which visa he could or could not apply for.
8. However, it is not necessary to finally resolve this question. This is because it is apparent that the Minister has considered the substance of the legal consequence, said to arise under this argument, being the permanent exclusion of the Applicant from Australia. The reasons of the Minister in the Decision demonstrate that he has considered the position of the Applicant, if his visa is cancelled under the Decision, on the basis that he would be removed from Australia and not able to return. That is that he would be permanently excluded from Australia.
9. First, when considering the Applicant's two daughters and two nieces, it was considered that his relationship with his minor children would be severely impacted and his nieces would suffer a negative emotional impact if he was removed from Australia and returned to the Solomon Islands. The Minister considered the Tribunal's finding of the impact on his two minor children that "the children will suffer grievously from a lack of any basic connection with their father." In relation to one of his nieces, the Minister observed that "his removal would mean that she could not establish a personal relationship should she wish to do so." These matters from the Minister's reasons, amongst others, demonstrates that the Minister is considering that the Applicant is being removed from Australia on a permanent basis.
10. Secondly, in considering his ties to Australia, the Minister considered the position of the Applicant's mother "if [he] was returned to the Solomon Islands" and that she would be required to continue to care for the Applicant's minor children. Further, that his immediate family in Australia would experience emotional, practical and financial hardship if he is "unable to remain in Australia". These matters from the Minister's reasons, amongst others, demonstrate that the Minister is considering that the Applicant is being removed from Australia on a permanent basis.
11. Thirdly, in the Minister considering the impediments on the Applicant if removed from Australia to the Solomon Islands, the Minister considered that the Applicant would need to establish himself. Furthermore, he would also be required to maintain a basic living standard in the Solomon Islands. The matters then considered were in terms of language and/or cultural barriers, social, medical and/or economic support available in the Solomon Islands.
12. All of these matters demonstrate that the Minister is considering that the Applicant is returning to the Solomon Islands permanently.
13. Therefore, reading the Decision as a whole, I accept that the legal consequences and effect of matters such as s 501E of the Act and cl 5001(d), that the Applicant is being removed from Australia permanently, have been considered and weighed by the Minister.
14. As such, no jurisdictional error is established on this basis.

1. None of the grounds of the amended application have been established by the Applicant.
2. The Amended Application will be dismissed with costs.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheatley.