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[2025] HCA 17
appellant. Appeal allowed; the orders made by Gordon J were set aside and replaced with orders quashing the delegate’s cancellation decision, declaring the second and third appellants’ visas were not...
The High Court accepted that a visa decision-maker could not treat the first appellant's failure to answer an invitation to comment as a reason favouring cancellation when the Migration Act did not require an answer. That error affected the cancellation decision. Although the Minister agreed to the proposed appeal orders, the Court had to check for itself that those orders were legally appropriate. It did so, allowed the appeal, quashed the cancellation and made a declaration about the other appellants' visas.
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2,016 words · generated 03/10/2026
The judgment concerns a cancellation decision made under the Migration Act 1958 (Cth) and, separately, the High Court's responsibility when parties agree on the orders they want in an appeal from the Court's original jurisdiction.
No linked legislation citations have been extracted yet.
The first appellant held a Protection (Class XA) (subclass 866) visa. A delegate considered cancellation under s 116(1AA), which applies where the Minister is not satisfied as to the visa holder's identity. Section 119 requires written notice where cancellation is being considered: the holder is to be told the apparent grounds, given particulars and the information supporting those grounds, and invited to show within a specified time why the grounds do not exist or why the visa should not be cancelled ([10]).
The first appellant did not respond to the Notice of Intention to Consider Cancellation. The delegate's decision recorded that the visa holder had “failed to respond” or engage with the process and stated: “I give this consideration some weight in favour of cancelling the visa” ([11]). The delegate cancelled the first appellant's visa on 19 December 2019. The cancellation was also said to affect the protection visas of the second and third appellants under s 140 ([11]).
The appellants' new point was that the delegate committed jurisdictional error by treating non-response as an adverse factor when the first appellant had no legal obligation to respond. They raised that contention for the first time in their amended notice of appeal. The Minister conceded the error and consented to orders allowing the appeal. The parties also provided an agreed document explaining why the issue had not been raised earlier, including that the appellants were not, and could not reasonably have been, aware of the relevant authority at first instance ([2]-[5]).
The High Court allowed the appeal. It quashed the delegate's decision by certiorari, declared that the second and third appellants' visas were not cancelled by operation of s 140, and made costs orders ([12] and order 3).
The Court addressed two connected questions. First, whether the delegate's reasoning involved jurisdictional error. Second, whether the Court could simply make the orders the parties had agreed on.
On the first question, the Court focused on the statutory scheme and the delegate's actual reasons. Section 119 requires an invitation to respond, but it does not impose a legal duty to answer ([10]). The distinction matters: the statute gives the visa holder an opportunity to respond, while leaving the holder without a legal obligation to take it up. The delegate nevertheless treated the failure to respond as a factor supporting cancellation ([11]).
The Minister's concession was that it was not reasonably open to a decision-maker exercising the cancellation discretion to take that non-response into account adversely, because there was no legal requirement to respond ([3]). The Court characterised the conceded error as jurisdictional error arising from legal unreasonableness in the manner of exercising the statutory power ([10]). It accepted the concession after examining the statutory provisions and the delegate's express words ([9]-[12]).
The judgment does not rest solely on the parties' agreement. The Court explained that its appellate power under s 37 of the Judiciary Act 1903 (Cth) includes power to reverse or modify the judgment appealed from and give the judgment that ought to have been given at first instance ([6]). But, in an appeal from a judgment given in the High Court's s 75(v) original jurisdiction, the Court must itself be satisfied that the orders it makes are appropriate, even if the orders are sought by consent ([6]-[7]).
The reason is institutional as well as procedural. The Court described its original jurisdiction as serving to ensure that Commonwealth officers obey the law and do not exceed or neglect their jurisdiction ([7]). The law applied in that jurisdiction cannot be altered by agreement. The Court also explained why reasons mattered here: the appeal departed from an earlier judgment for which extensive reasons had been published, and those who must obey and apply the law are entitled to know why ([8]). The Court therefore identified the concession, evaluated it, and stated that it was correct ([9], [12]).
The judgment sets out the relevant legal position through the text and operation of ss 116, 119 and 140 of the Migration Act. Section 116(1AA) supplied the cancellation power referred to in the reasons. Section 119 required a notice and an invitation to show why cancellation should not occur. The Court stated expressly that the Act imposed no legal obligation on the visa holder to respond to that invitation ([10]).
The decision also explains the consequence of treating the non-response adversely in this case. The delegate said the failure to respond counted “some weight in favour of cancelling the visa” ([11]). The Court accepted the Minister's concession that this reasoning was not reasonably open in the circumstances, and that the cancellation decision was affected by jurisdictional error ([10]-[12]).
It would overstate the judgment to describe it as establishing that a visa holder's non-response can never be relevant in any decision-making context. The stated reasoning is tied to the statutory invitation under s 119, the absence of a legal obligation to respond, and the delegate's use of that failure as a factor favouring cancellation. The Court adopted the Minister's concession on those circumstances; it did not discuss hypothetical situations involving different statutory duties or different decision-making processes.
The procedural point is also important. The judgment confirms that consent does not relieve the High Court of its responsibility to assess the legal appropriateness of orders in an appeal from its s 75(v) original jurisdiction ([6]-[9]). That point applies independently of the migration issue: the Court must not treat an agreed outcome as a substitute for judicial consideration of whether the proposed orders are authorised and appropriate.
At [6], the Court said that it must be “satisfied that such orders as it makes are appropriate,” even if the orders “are sought and made by consent.” In plain English, the parties' agreement does not decide the appeal for the Court. The Court must check that the proposed result is legally justified.
At [7], the Court explained that the original jurisdiction exists to ensure Commonwealth officers obey the law and stay within their legal powers. It added that the law declared and enforced in that jurisdiction cannot be changed by agreement. In practical terms, the parties cannot privately agree that a public decision-maker acted lawfully or unlawfully and thereby bind the Court without judicial scrutiny.
At [10], the Court stated that the Migration Act imposed “no legal obligation on the holder to respond” to a s 119 invitation. In plain English, the notice gave the holder an opportunity to answer, but the Act did not make answering compulsory.
At [11], the delegate's own reasoning was set out: the failure to respond was given “some weight in favour of cancelling the visa.” That passage shows the precise link between the statutory feature and the alleged error. The delegate did not merely record that no response had been received; the delegate treated the absence of a response as a reason supporting cancellation.
At [12], the Court said: “The Minister's concession is correct.” This is the Court's express conclusion that the concession was legally sound. The paragraph then states that the decision was affected by jurisdictional error and that the consent orders were appropriate.
The judgment is most directly relevant to a fact pattern where a statutory scheme requires a decision-maker to invite a person to respond, but does not legally require that person to do so, and the decision-maker uses the person's non-response adversely. The closer the facts are to the judgment's particulars, the more directly its reasoning applies: a visa cancellation process under ss 116 and 119, a failure to answer the notice, and an express statement that the failure counted in favour of cancellation ([10]-[11]).
The decision is also relevant to appellate procedure where parties jointly seek orders that would displace a judgment given in the High Court's original jurisdiction. In that setting, the Court's reasons make clear that consent does not remove the need for it to assess the legal basis and appropriateness of the requested orders ([6]-[9]).
The judgment does not decide every question that might arise from a failure to respond to a notice. It does not address a statutory scheme that imposes an express response duty, nor does it determine the relevance of non-response in a materially different context. It also does not give a general account of every factor a migration decision-maker may consider under s 116. The established point should therefore be read alongside the specific text of the relevant statute and the actual reasoning used by the decision-maker.
The supplied judgment contains no account of later judicial treatment of this 2025 decision. It therefore does not provide a basis to say whether subsequent courts have followed, distinguished or otherwise applied its reasoning.
The judgment does refer to an earlier proceeding, Lazenby v Minister for Home Affairs (S51/2022). The parties' agreed document said that the Minister had made a consistent concession there and that a writ of certiorari had issued, but no reasons for that earlier decision were published ([4]). The Court did not present Lazenby as a reasoned precedent establishing the rule. Rather, it recorded the earlier concession as background to how the point came to be raised.
The Court also cited existing authorities for separate parts of its reasoning. It cited Minister for Immigration and Citizenship v Li on legal unreasonableness and Minister for Home Affairs v DUA16 on the focus on the particular circumstances of exercising statutory power ([10]). It cited Plaintiff S157/2002 v The Commonwealth in describing the purpose of the original jurisdiction, and Wainohu v New South Wales in support of the institutional importance of reasons ([7]-[8]). These are authorities relied on by the judgment; they are not later treatments of M19A.
The judgment's reasoning is concentrated and fact-specific. It does not explore what significance non-response may have where the governing statute contains a separate obligation to provide information, or where the decision-maker relies on the absence of a response for a purpose other than treating silence itself as adverse. Those situations would require attention to the applicable statutory text and the actual decision reasons; they are not resolved in the supplied judgment.
The Court accepted the Minister's concession that, in this case, it was not reasonably open to give adverse weight to non-response where there was no legal requirement to answer ([3], [10]-[12]). The reasons do not set out a comprehensive test for assessing every instance in which a decision-maker considers a person's silence. Nor do they define the permissible weight of other kinds of conduct during a cancellation process.
The judgment also does not explain in detail the statutory operation of s 140 beyond recording that cancellation of the first appellant's visa had the effect of cancelling the other appellants' visas, and making a declaration that their visas were not cancelled by operation of that section after the primary decision was quashed ([11], order 3(b)). The declaration is part of the outcome, but the reasons do not independently analyse the full operation of s 140.
Finally, the procedural reasoning may prompt questions about how much scrutiny is required when all parties agree on appeal orders. The Court's answer here is that it must be satisfied that the orders are appropriate and must give reasons, especially where the appellate orders depart from a reasoned judgment in the Court's original jurisdiction ([6]-[9]). The judgment does not prescribe a universal form or level of detail for that scrutiny. Its own method was to identify the concession, explain the legal basis, compare it with the statutory text and the delegate's reasons, and record its satisfaction.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
PLAINTIFF M19A/2024 & ORS APPELLANTS
AND
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS RESPONDENT
Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs
[2025] HCA 17
Date of Judgment: 10 April 2025
M92/2024
ORDER
The name of the Respondent be amended from 'Minister for Immigration, Citizenship and Multicultural Affairs' to 'Minister for Immigration and Multicultural Affairs'.
Appeal allowed.
Set aside the orders made by Justice Gordon on 18 October 2024, and, in their place, order that:
(a) A writ of certiorari issue directed to the Respondent quashing the decision of the delegate of the Respondent dated 19 December 2019 to cancel the First Appellant's Protection (Class XA) (subclass 866) visa.
(b) Declare that the Protection (Class XA) (subclass 866) visas held by the Second Appellant and Third Appellant were not cancelled by operation of s 140 of the Migration Act 1958 (Cth).
(c) The Respondent pay the Appellants' costs of the proceeding (M19/2024), except the costs of the hearing on 26 July 2024.
4. The Respondent to pay the Appellants' costs of the appeal (M92/2024) and of the application for leave to appeal (M97/2024).
On appeal from the High Court of Australia
Representation
The appellants are represented by the Asylum Seeker Resource Centre
The respondent is represented by the Australian Government Solicitor
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs
High Court – Appellate jurisdiction – Practice – Reasons for judgment – Where first appellant sent Notice of Intention to Consider Cancellation ("NOICC") of visa – Where first appellant did not respond to NOICC – Where first appellant did not have legal obligation to respond to NOICC – Where delegate of respondent gave weight to first appellant not responding to NOICC – Where appellants sought to raise in amended notice of appeal for first time contention that delegate of respondent committed jurisdictional error by giving weight to first appellant's non-response to NOICC – Where respondent conceded that jurisdictional error before hearing of appeal – Where parties provided to Court agreed document explaining circumstances – Whether reasons for decision required when orders sought by consent – Whether appropriate to make orders by consent – Whether decision of delegate affected by jurisdictional error.
Words and phrases – "appellate jurisdiction", "concession", "consent orders", "institutional responsibility", "jurisdictional error", "legal obligation", "original jurisdiction", "reasons".
Constitution, ss 73, 75.
Judiciary Act 1903 (Cth), s 37.
Migration Act 1958 (Cth), ss 116, 119, 140.
GAGELER CJ, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ. These reasons for judgment concern an appeal under s 73(i) of the Constitution from a final judgment of a Justice exercising original jurisdiction under s 75(v) of the Constitution.1
In their amended notice of appeal, the appellants raised for the first time a contention that the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel the first appellant's protection visa under s 116(1AA) of the Migration Act 1958 (Cth) is vitiated by jurisdictional error by reason of the delegate having given weight to the fact that the first appellant did not respond to a "Notice of Intention to Consider Cancellation" of that visa in circumstances where there was no legal obligation on the first appellant to respond to such a notice. In written submissions filed in support of the appeal, the appellants sought leave to raise this new issue on the basis that it could not have been the subject of any additional evidence at first instance and did not involve any "fresh consideration of facts that are neither admitted nor beyond controversy".2
In response to the application for leave to raise the new issue, the Minister consented to the making of orders allowing the appeal, setting aside the judgment and substituting orders which include the issue of a writ of certiorari and a declaration. The parties also provided to the Court an agreed document explaining the circumstances in which this new point has been raised for the first time in this appeal. This document records the Minister's concession that:
"it is not reasonably open to a decision maker, when exercising their discretion to cancel a visa under s 116 of the [Migration Act], to take into account a failure to respond to an NOICC [Notice of Intention to Consider Cancellation] in a manner adverse to a visa holder, as there is no legal requirement for a person to respond to such a notice. As such, the [Minister] concedes that the delegate fell into jurisdictional error in doing so in this case."
The agreed document also records that the "basis of the Minister's concession is consistent with the Minister's concession in an earlier proceeding before a single judge of this Court, where a writ of certiorari was issued: see Lazenby v Minister for Home Affairs (S51/2022)" but that no reasons for that earlier decision were published and "only the Minister and not the [a]ppellants were aware of that conceded issue of principle at first instance".
In these circumstances, and where the issue was not raised by the appellants below because they were not and could not reasonably have been aware of the relevant authority, it is necessary in the interests of justice that the appeal be determined on the basis of the concession as to jurisdictional error by the delegate now properly made by the Minister.
The power of this Court to make orders in the exercise of its appellate jurisdiction is to "affirm reverse or modify the judgment appealed from" and to "give such judgment as ought to have been given in the first instance".3 The proper exercise of that power in an appeal from a judgment given in the original jurisdiction of the Court under s 75(v) of the Constitution necessitates that the Court on appeal be satisfied that such orders as it makes are appropriate. That is so even if those orders are sought and made by consent.
That constraint on the making of orders by consent in an appeal from a judgment given in the original jurisdiction of the Court under s 75(v) of the Constitution arises because the original jurisdiction exists to ensure that "officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them"4 and because the law declared and enforced in the exercise of the original jurisdiction is incapable of alteration by agreement.5
Moreover, performance by this Court of its institutional responsibility ordinarily to publish reasons for such orders as it makes6 has heightened significance where orders are made in its appellate jurisdiction which involve a departure from a judgment given in its original jurisdiction in respect of which extensive reasons were published at the time of judgment. Those who are bound to obey and apply the law as declared by this Court are entitled to know exactly why that departure has occurred.
Accordingly, the concession of error on which the consent orders are founded is identified above. We now record our satisfaction that the concession is correct.
Plaintiff M19A/2024 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 39. ↩
Bird v DP (a pseudonym) (2024) 98 ALJR 1349 at 1360-1361 [39], 1406 [256]; 419 ALR 552 at 563, 622. ↩
Section 37 of the Judiciary Act 1903 (Cth). ↩
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 514 [104]. ↩
Compare VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 49 at 50 [3], citing Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 at 328 [12]. ↩
See Wainohu v New South Wales (2011) 243 CLR 181 at 214-215 [56]. ↩
See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 362 [63], 371 [91], 375 [105]. ↩
Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563 [26]. ↩
Plaintiff M19A-2024
Minister for Immigration and Multicultural Affairs [2025] HCA 17
(2024) 98 ALJR 1349
(2003) 211 CLR 476
(1999) 100 FCR 323
(2011) 243 CLR 181
(2013) 249 CLR 332
(2020) 271 CLR 550
Appeal allowed; the orders made by Gordon J were set aside and replaced with orders quashing the delegate’s cancellation decision, declaring the second and third appellants’ visas were not cancelled under s 140, and requiring the respondent to pay the specified first-instance, appeal and leave-application costs, except the costs of the 26 July 2024 hearing.
The conceded error is an instance of jurisdictional error arising from legal unreasonableness in the manner in which a decision has been made,7 the focus of which is "upon the particular circumstances of exercise of the statutory power".8 By s 116(1AA) of the Migration Act the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity. By s 119, if the Minister is considering cancelling a visa under s 116, the Minister must, in writing, notify the holder that there appear to be grounds for cancelling it, give particulars of those grounds and the information because of which those grounds appear to exist, and invite the holder to show within a specified time that those grounds do not exist or that there is a reason why it should not be cancelled. The Migration Act imposes no legal obligation on the holder to respond to an invitation under s 119.
In deciding to cancel the first appellant's protection visa under s 116(1AA) (the effect of which was also to cancel the protection visas of the second and third appellants under s 140 of the Migration Act) the delegate said "[t]he visa holder has failed to respond to the Notice [of Intention to Consider Cancellation] or engage in the cancellation process ... I give this consideration some weight in favour of cancelling the visa." The Minister's concession accepts that the delegate was not entitled to give that fact any weight given that there was no obligation on the first appellant to respond to the notice under s 119.
The Minister's concession is correct. The decision of the delegate being affected by jurisdictional error, it follows that the consent orders founded on the Minister's concession are appropriate to be made.