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[2025] HCA 36
respondent. Extension of time granted; the jurisdictional-error grounds were rejected, no relief was granted, and the plaintiff was ordered to pay the costs.
The Court gave the plaintiff extra time because his mistaken belief about why he had been released from detention was understandable in the circumstances, and the delay did not prejudice the Minister. But it rejected his arguments that the delegate misunderstood the visa and detention scheme, misapplied the Direction's community-expectation provisions, or acted unfairly or unreasonably by quoting from legal advice he had supplied. The decision not to revoke the cancellation therefore stood, no writs were issued, and the plaintiff paid the costs.
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2,387 words · generated 03/10/2026
The plaintiff was a 65-year-old Iraqi citizen who arrived in Australia in 2012. He could not read, write or converse in English, and had been diagnosed with post-traumatic stress disorder. After a protection-visa process, the Refugee Review Tribunal determined in 2015 that Australia owed him protection obligations as a refugee. A protection finding was later made in relation to Iraq, and he was granted a Temporary Protection visa (TPV) [3].
No linked legislation citations have been extracted yet.
In June 2022, he was convicted of specially aggravated detaining of a person for advantage and sentenced to five years and nine months' imprisonment, with a non-parole period of three years and six months. His TPV was mandatorily cancelled under s 501(3A) of the Migration Act on 21 March 2023. He made representations seeking revocation of the cancellation, but a delegate decided not to revoke it on 24 October 2024 [4].
The plaintiff was in immigration detention when he received the decision, together with a 335-page notification package. He was released that day on a Bridging R visa (BVR), not because the TPV cancellation had been revoked, but because there was then no real prospect of his removal becoming practicable in the reasonably foreseeable future. He mistakenly understood that the TPV cancellation had been revoked [5]. His BVR ceased on 15 February 2025 after Nauru gave him permission to enter and remain there. He was detained again the next day, when he first realised that the TPV cancellation had not been revoked and that the usual 35-day filing period had passed [6].
He sought certiorari to quash the non-revocation decision and mandamus requiring a decision according to law [1]. The High Court extended the time to bring the application. It nevertheless rejected all three substantive grounds of challenge, granted no substantive relief and ordered the plaintiff to pay the costs [36].
The first issue was whether the Court should extend time under s 486A(2). The Minister argued that extension should depend on the plaintiff succeeding on his review grounds. The Court rejected that approach: it assessed the interests of the administration of justice on the circumstances as a whole, including the merits at a “reasonably impressionistic level” [7]. The plaintiff's limited English and understandable confusion about the reason for his release explained the delay. The application was filed about four months after the decision, the Court did not regard the delay as excessive, and the Minister identified no prejudice [7]. Those factors together satisfied the statutory test [8].
The first substantive challenge concerned Direction 110, para 9.1, which required consideration of relevant legal consequences. The delegate said the Minister would “separately consider the type of visa” on which the plaintiff should reside and the conditions applying to it [9]. The plaintiff argued that this showed the delegate wrongly thought a visa other than a BVR could be granted, or failed to grapple with the consequences of the statutory scheme, including mandatory BVR monitoring conditions [11].
The Court accepted that the reference to considering the visa “type” was inapt, since a BVR was the only visa type available in the circumstances identified [15]. But the reasons had to be read as a whole, not parsed minutely to find error [16]. The Court inferred from departmental communications that the delegate knew a BVR was being considered and was very likely to be granted at about the same time as the non-revocation decision [13], [18]. The reasons distinguished the delegate's decision under s 501CA(4) from the separate process for granting a BVR. The Court concluded that the delegate had recognised the practical consequence: while removal was not reasonably practicable, the plaintiff could not be detained and would be in the community, with or without a visa [18]-[20]. The Direction did not require express reference to every likely consequence of a separate discretionary decision, including the BVR conditions [14].
The second substantive challenge concerned Direction 110, para 8.5. The plaintiff accepted that his offending was not conduct of the kind listed in the second sentence of para 8.5(2). He argued that the delegate could not apply the particular expectation in that sentence and that the reasons were inconsistent with the expectation that he would reside in the community on a BVR [22]-[24].
The Court read the delegate's reasons as applying the general expectations in para 8.5(1) and the first sentence of para 8.5(2), not treating the plaintiff's conduct as one of the specified kinds. The delegate had referred to “general expectations”, without identifying any specified conduct [25]-[26]. The Court considered that a serious offence could attract significant weight under the general provisions, even if it did not fall within the specified categories [26]. It also distinguished the TPV, which permitted the plaintiff to remain, from the BVR, which was a different, conditional visa and would cease in the circumstances set out in s 76AAA [27]. The prospect of BVR residence therefore did not contradict the delegate's consideration of whether the TPV should continue [27]-[28].
The final challenge concerned legal advice provided to the Department. The advice related to the prospects of appealing the sentence. It was covered by a letter stating that it was privileged and should not be read by anyone other than the plaintiff. The delegate nevertheless read and quoted a passage in the advice stating that the sentencing judge considered the plaintiff's criminality to be “of a high order” [29]-[30]. The plaintiff argued that the advice was provided by mistake, that the Department knew it was privileged, and that its use was adverse and unfair [31].
The Court considered that the Department could reasonably infer the advice had been supplied to support the plaintiff's representations. Those representations accepted responsibility and expressed remorse, and the advice's quotation corresponded with the plaintiff's position that he wanted to rebuild his life as a law-abiding member of society [32]. The sentencing judge's remarks were separately before the delegate. The legal advice added no adverse sentencing fact, and the advice about prospects of appealing the sentence did not appear in the delegate's reasoning [33]-[34]. Since the plaintiff had an opportunity to address the sentencing remarks, the advice did not constitute separate relevant adverse material requiring further disclosure. The Court found no practical injustice and no legal unreasonableness [34]-[35].
This judgment is a fact-specific application of the statutory framework and Direction 110 identified in the reasons. It does not purport to change the terms of s 486A, s 499(2A), s 501CA(4), or para 8.5 of the Direction. The Court applied s 486A(2)'s test, which asks whether an extension is necessary in the interests of the administration of justice, and considered the explanation for delay, its length, prejudice and the proposed grounds at a reasonably impressionistic level [6]-[8].
For administrative reasons, the Court invoked the existing approach that reasons are not to be read “minutely and finely” with an eye keenly attuned to error [16], referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang. Its application here means that an imprecise phrase does not, in isolation, establish that the decision-maker misunderstood the law. The Court read the phrase about a separate visa-type consideration in light of the rest of the reasons and the inferred departmental context [16]-[20].
On community expectations, the Court treated para 8.5 as containing distinct general and specified-conduct aspects. It reasoned that a decision-maker can rely on the general expectations in para 8.5(1) and the first sentence of para 8.5(2), without finding that an individual engaged in conduct listed in the second sentence of para 8.5(2) [25]-[27]. The judgment's reasoning is tied to the text and structure of the Direction quoted in the case. It does not state that every serious offence will attract significant weight in every case.
On procedural fairness, the Court focused on whether the material was separately adverse and whether the failure to provide an opportunity to claim privilege caused practical injustice. The particularity of the facts mattered: the sentencing remarks were already before the delegate, and the legal advice's appeal-prospects opinion was not used in the reasons [33]-[35]. The judgment should therefore not be read as establishing a general rule that decision-makers may use privileged documents supplied by mistake, or that notice is never needed when a document is marked privileged.
At [7], the Court said it was not reasonable to expect a person who read and spoke almost no English to understand that release from detention did not mean the TPV cancellation had been revoked. In plain English, the circumstances of release explained why the plaintiff missed the filing deadline. The Court also took account of the relatively limited delay and absence of identified prejudice [7].
At [14], the Court said the delegate was not required to refer expressly to the likely consequences of a separate discretionary exercise of executive power. In plain English, the Direction required consideration of relevant legal consequences, but did not require the delegate's reasons to catalogue every consequence of a different decision-making process.
At [16], the Court repeated the principle that administrative reasons should not be examined with excessive minute attention for possible error. In this case, it meant the phrase “the type of visa” could be treated as infelicitous drafting when the full reasons showed the delegate understood that a separate BVR process was likely [16]-[19].
At [26], the Court explained that the general community expectations and the specified-conduct expectation in para 8.5(2) operated separately. In plain English, the delegate could give weight to the general expectation that non-citizens obey Australian law, without asserting that the plaintiff's offence fell within the particular list of conduct in the Direction [25]-[26].
At [34], the Court concluded that no practical injustice resulted from the absence of an opportunity to claim privilege over the legal advice. In plain English, the relevant sentencing observation was already known and open to comment, while the advice about an appeal was not relied on in the decision [33]-[34].
The decision is most directly relevant where a person seeks an extension under s 486A(2) after missing the filing period for a challenge to a migration decision. The circumstances considered here included a substantial language barrier, detention-centre notification, mistaken understanding of release, a delay of about four months, no identified prejudice and proposed grounds that the Court could assess at a reasonably impressionistic level [5]-[8]. The judgment does not set a general time threshold or say that these factors will always justify an extension.
It is also relevant to challenges based on a decision-maker's discussion of consequences arising from separate statutory processes. Here, the delegate's wording was not exact, but the Court considered the whole of the reasons and the inferred understanding of the likely BVR process [13]-[20]. A lawyer examining another decision would need to compare the actual reasons, statutory powers, Direction requirements and available evidence of what the decision-maker understood.
For para 8.5 challenges, the case concerns a distinction between general community expectations and a particular expectation tied to specified conduct. The plaintiff's offence was not among the kinds listed, yet the Court held that the delegate could apply the general provisions and assign them significant weight in the circumstances [22]-[28]. The judgment does not decide how the provisions apply where the reasons expressly misclassify conduct or fail to distinguish the relevant parts of the Direction.
Finally, the case may be relevant where privileged advice was mistakenly supplied to an administrative decision-maker and later quoted in reasons. Its conclusion depended on the source and use of the information: the quoted sentencing assessment was independently before the delegate, and the appeal opinion was not mentioned [29]-[35]. Different facts, especially reliance on novel adverse information or evidence that the decision-maker knew the document had been supplied in error, are not resolved by this judgment.
The supplied judgment contains no later decisions applying, distinguishing or explaining Plaintiff S22/2025. It is dated 3 September 2025, and the text provided does not identify subsequent treatment. No claim about later court treatment can therefore be grounded in this source.
The judgment itself refers to earlier authorities. It cites Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for the “reasonably impressionistic” assessment of proposed grounds when deciding whether to extend time [7]. It refers to NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs in explaining why detention could not continue when there was no real prospect of removal becoming practicable in the reasonably foreseeable future [7], [16], [18]. It also invokes Wu Shan Liang for the approach to reading administrative reasons [16]. These are authorities considered by this Court, not later treatment of this judgment.
The judgment does not specify how much weight each extension factor should receive in other cases. It records that the Court considered the plaintiff's explanation, delay, prejudice and proposed grounds together, but it does not supply a formula for balancing them [7]-[8].
Nor does it decide how detailed reasons must be when a Direction requires consideration of legal consequences. The Court held that express reference to the likely BVR conditions was unnecessary on these facts, given the separate discretionary process and the delegate's inferred understanding [13]-[20]. The limits of that conclusion in a case where a relevant consequence is central to the decision remain outside the reasons.
The judgment also leaves open how para 8.5 should operate where a decision-maker's reasons expressly attribute specified conduct to a person, or where the relationship between the general and particular expectations is less clear. The Court's reading depended on the delegate's general language and the absence of an identified kind of specified conduct [25]-[27].
Finally, the procedural-fairness analysis is tied to the particular content and use of the advice. The Court did not determine a broad privilege rule. It found no separate relevant adverse material or practical injustice because the sentencing remarks were independently available and the opinion on appeal prospects was not used [33]-[35]. The consequences of actual reliance on confidential legal analysis, or clear notice that privileged material was supplied by mistake, were not decided.
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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,
EDELMAN AND JAGOT JJ
PLAINTIFF S22/2025 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS DEFENDANT
Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs
[2025] HCA 36
Date of Hearing: 16 June 2025
Date of Judgment: 3 September 2025
S22/2025
ORDER
The questions stated for the opinion of the Full Court in the special case filed on 21 May 2025 be answered as follows:
Question (1): Should an extension of time be granted under s 486A of the Migration Act 1958 (Cth) for the filing of the application for a constitutional or other writ?
Answer: Yes.
Question (2): Is the non-revocation decision affected by jurisdictional error on the basis that the delegate, in addressing the legal consequences of the decision:
a. misapprehended or failed to consider the legal consequences of the decision; and/or
b. reasoned in a way that was legally unreasonable?
Answer: No.
Question (3): Is the non-revocation decision affected by jurisdictional error on the basis that the delegate failed to comply with Ministerial Direction 110, and so failed to comply with s 499(2A) of the Migration Act 1958 (Cth), in the consideration of the expectations of the community?
Answer: No.
Question (4): Is the non-revocation decision affected by jurisdictional error on the basis that the delegate:
a. denied the plaintiff procedural fairness; and/or
b. proceeded in a legally unreasonable manner,
by taking into account legal advice given to the plaintiff, without notice to the plaintiff?
Answer: No.
Question (5): What relief, if any, should be granted to the plaintiff?
Answer: None.
Question (6): Who should pay the costs of the proceeding?
Answer: The plaintiff.
Representation
C L Lenehan SC with T M Wood and K E W Bones for the plaintiff (instructed by Human Rights Law Centre)
P M Knowles SC and B D Kaplan with M P A Maynard for the defendant (instructed by 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 S22/2025 v Minister for Immigration and Multicultural Affairs
Immigration – Visas – Cancellation of visa – Where plaintiff held Temporary Protection (Class XD) (subclass 785) visa ("TPV") – Where plaintiff's TPV mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") following conviction and imprisonment for offence – Where plaintiff made representations about reasons why mandatory cancellation of TPV should be revoked under s 501CA(4) of Act but Minister's delegate decided not to revoke cancellation – Where plaintiff released from immigration detention – Where plaintiff incorrectly believed cancellation of TPV revoked when plaintiff released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") – Where BVR ceased pursuant to s 76AAA of Act when Republic of Nauru granted plaintiff permission to enter and remain – Where documents plaintiff gave Department of Home Affairs in support of representations included legal advice subject to legal professional privilege – Where delegate read and quoted from legal advice in delegate's reasons – Whether necessary in interests of administration of justice to grant extension of time under s 486A(2) of Act – Whether non-revocation decision void for jurisdictional error – Whether delegate did not properly confront legal consequences of non-revocation decision as required by Ministerial Direction 110 – Whether delegate misapplied para 8.5 of Ministerial Direction 110 – Whether use of legal advice by delegate without notice to plaintiff denied plaintiff procedural fairness or legally unreasonable.
Words and phrases – "certiorari", "constitutional writs", "expectations of the Australian community", "extension of time", "immigration detention", "irrational or unreasonable", "jurisdictional error", "legal advice", "legal consequences of decision", "legal professional privilege", "mandamus", "mandatory cancellation", "necessary in the interests of the administration of justice", "no real prospect of removal", "non-refoulement", "non-revocation", "practical injustice", "procedural fairness", "protection finding", "protection visa", "refugee", "relevant adverse material".
Judiciary Act 1903 (Cth), s 44.
Migration Act 1958 (Cth), ss 36(2)(a), 76AAA, 189, 195A, 197C(5)(a), 476(2), 476A, 486A, 499(2A), 501(3A), 501CA(4).
Migration Regulations 1994 (Cth), regs 2.08F, 2.20(18), 2.25AA(2), 2.25AB, Sch 2, cll 070.612(1), 070.612A(1).
GAGELER CJ, EDELMAN AND JAGOT JJ. By an amended application filed on 28 May 2025 the plaintiff seeks a writ of certiorari quashing a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to revoke the mandatory cancellation of the plaintiff's Temporary Protection (Class XD) (subclass 785) visa ("TPV") under s 501CA(4) of the Migration Act 1958 (Cth) and a writ of mandamus requiring the Minister to make a decision under s 501CA(4) whether to revoke the cancellation of the plaintiff's TPV according to law.1 The plaintiff and the Minister filed a special case in which they agreed the relevant facts and questions for the opinion of the Full Court.
As will be explained, as we are satisfied "it is necessary in the interests of the administration of justice" to make such an order as provided for in s 486A(2) of the Migration Act, the plaintiff should be granted an extension of time for the filing of the application for the constitutional writs. The plaintiff's contentions that the delegate's decision not to revoke the cancellation of the plaintiff's TPV is void for jurisdictional error, however, are not established.
The plaintiff is a 65‑year-old citizen of Iraq who arrived in Australia in 2012. He cannot read, write or carry on a conversation in English. He was diagnosed as suffering from post-traumatic stress disorder in or around 2013. He made a valid application for a protection visa in December 2012, which was converted into an application for a Temporary Protection (Class XD) (subclass 785) visa by operation of reg 2.08F of the Migration Regulations 1994 (Cth). The Refugee Review Tribunal determined that the plaintiff was a non-citizen in Australia in respect of whom Australia has protection obligations because he was a refugee in accordance with s 36(2)(a) of the Migration Act in 2015. On remittal from the Refugee Review Tribunal a protection finding was made for the plaintiff in respect of Iraq for the purposes of s 197C(5)(a) of the Migration Act and the TPV was granted to the plaintiff.
In June 2022 the plaintiff was convicted of the offence of specially aggravated detaining of a person for advantage and was sentenced to imprisonment for five years and nine months, with a non-parole period of three years and six months. On 21 March 2023, the plaintiff's TPV was mandatorily cancelled under s 501(3A) of the Migration Act. The plaintiff made representations to the Minister as to why the mandatory cancellation of his TPV should be revoked in response to the Minister's invitation to do so, but the Minister's delegate decided not to revoke the cancellation on 24 October 2024.
The plaintiff was in immigration detention when the delegate's decision not to revoke the cancellation of his TPV was notified to him on 24 October 2024. The notification occurred by an officer of the immigration detention centre handing to the plaintiff the notification together with a 335‑page "notification package". The plaintiff was then informed he was being released from immigration detention. The plaintiff incorrectly believed that the cancellation of his TPV had been revoked when, in fact, he had been released from immigration detention under a Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") granted on 24 October 2024, being a type of visa which the Minister may grant to an eligible non-citizen in accordance with reg 2.25AB(1) of the Migration Regulations (the plaintiff being a non-citizen who, as provided for in reg 2.20(18), "there is no real prospect of the removal of ... from Australia becoming practicable in the reasonably foreseeable future").
On 15 February 2025 the plaintiff's BVR as then in force2 ceased pursuant to s 76AAA of the Migration Act when the Republic of Nauru granted the plaintiff permission to enter and remain in Nauru. The next day, 16 February 2025, the plaintiff was taken into immigration detention. On that day the plaintiff, who had been placed into contact with a lawyer, realised for the first time that the cancellation of his TPV had not been revoked and that the period of 35 days to apply to this Court for review of the non-revocation decision as provided for in s 486A(1) of the Migration Act had expired. Section 486A(2) permits this Court to grant an extension of time as it considers appropriate if: (a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Although the Minister submitted that the grant of an extension of time should depend on the plaintiff's grounds for review being accepted, the interests of the administration of justice dictate that an extension of time should be granted irrespective of the outcome of the plaintiff's challenge to the validity of the decision. It was not reasonable to expect that the plaintiff, who read and spoke almost no English, would understand that he was being released from immigration detention not because the mandatory cancellation of his TPV had been revoked, but because the mandatory cancellation of his TPV had not been revoked and, until Nauru gave him permission to enter and remain in Nauru, he could not be lawfully detained in immigration detention as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future. It follows that there is a reasonable explanation for the delay of the filing of the plaintiff's application for the constitutional writs. The delay is also not excessively long, the originating application having been filed on 21 February 2025, about four months after the non-revocation decision. The Minister also points to no prejudice resulting from the delay. In light of the combined strength of these matters, and an assessment of the merits of the proposed grounds of review as a whole at a "reasonably impressionistic level", we are satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time.
"117. I am aware that even if a non-revocation decision is made under s 501CA(4), [the plaintiff] will not remain indefinitely in detention. He will be released from immigration detention. The Minister will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department."
This statement reflected the delegate's express understanding that, as the plaintiff was the subject of a protection finding in respect of his country of citizenship, Iraq, and there was no real prospect of his removal to a third country at that time, the plaintiff "would not be subject to indefinite detention pending his removal and would instead be released from detention".
The plaintiff contended that the statement at para 117 of the delegate's reasoning exposes jurisdictional error by reason of the delegate not confronting the legal consequences of the decision not to revoke the cancellation of the TPV in that: (1) based on his dealings within the Department of Home Affairs, the delegate in fact knew that the Minister would not consider the "type of visa on which" the plaintiff should reside in Australia and the conditions of that visa and that the plaintiff would be granted the BVR on the conditions that were mandatory to be imposed on the BVR, so that the reasoning process, being contrary to the known facts, was legally irrational and unreasonable; (2) the delegate failed to understand that the only visa the plaintiff could be granted in accordance with the statutory scheme was the BVR; and (3) the delegate failed to consider the consequences of the application of that statutory scheme to the plaintiff. The plaintiff further asserted that the "human implications" of the monitoring conditions, the breach of which carried the consequence of imprisonment, reinforced the asserted requirement for consideration of the statutory consequences of the grant of a BVR.
By s 499(2A) of the Migration Act the delegate, in performing the delegate's functions and exercising the delegate's powers, was required to comply with Ministerial Direction 110. Paragraph 9(1) of Ministerial Direction 110 provided that, in making a decision under, amongst other provisions, s 501CA(4), certain considerations must be taken into account, where relevant, including "in accordance with the following provisions ... a) legal consequences of the decision". The "following provisions" stated, amongst other things: that "[d]ecision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section" (para 9.1(1)); that "[w]here a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen" (para 9.1.1(1)); and the potential inability of the non-citizen to apply for another visa except a Bridging R (Class WR) visa (para 9.1.1(3)).
It can be inferred that the delegate knew that, as a consequence of the delegate's decision not to revoke the cancellation of the plaintiff's TPV, the plaintiff would be considered for and would most likely be the subject of a grant of the BVR including the mandatory conditions to which such visas are subject. This does not mean, however, that the statement in para 117 of the delegate's reasons exposes a failure to confront the legal consequences of the delegate's decision in any of the ways proposed on behalf of the plaintiff. To the contrary, in circumstances where the plaintiff is correct that the delegate knew that the grant of a BVR to the plaintiff was being considered and was very likely to be granted on the same day as the delegate's decision refusing to revoke the cancellation of the plaintiff's TPV, it is impossible to infer that the delegate misunderstood the statutory scheme or failed to consider its application to the plaintiff.
Although the delegate made no specific reference to the consequences of the grant of a BVR, including the imposition of mandatory monitoring conditions, there was no obligation upon the delegate to make express reference to those consequences (however probable) of a discretionary exercise of executive power while the plaintiff was being detained or after release.6 The plaintiff is then left with the first way in which he alleges that the decision is void on this ground, being legal irrationality or unreasonableness based on what should be characterised as nothing more than, at worst, mere infelicitous drafting of reasons.
To explain further, the statement that the Minister "will separately consider the type of visa on which [the plaintiff] should reside" is incorrect in that it is common ground that the only "type" of visa that could be granted to the plaintiff after the delegate decided not to revoke the cancellation of the plaintiff's TPV was the BVR. The plaintiff submitted that the statement in para 117 exposed that, contrary to the true position, the delegate wrongly believed that the Minister could grant a visa other than a BVR to the plaintiff under s 195A(2) of the . Section 195A(2) provides that if "the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom [s 195A] applies a visa of a particular class (whether or not the person has applied for the visa)", but by s 195A(1) the section only applies to a "person who is in detention" under s 189 and the delegate clearly understood that the plaintiff would be granted another visa because he could not be kept in immigration detention.
"(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
...
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community[.]
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case."
It is common ground that the plaintiff's offending did not involve conduct of the kind specified in para 8.5(2).
In complying with Ministerial Direction 110, the delegate said this in the delegate's reasons for decision:
"101. The Direction indicates that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
102. In addition, the Direction also indicates that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the visa holder raises serious character concerns through certain kinds of conduct.
103. In this regard, I have also noted the Direction states that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
104. I have proceeded on the basis that the Australian community's general expectations about non-citizens, as articulated in the Direction, apply in this case. I have attributed this consideration significant weight against revocation of the cancellation of [the plaintiff's] visa."
Neither contention of the plaintiff withstands scrutiny. Paragraphs 101 to 103 of the delegate's reasons reflect the terms of para 8.5(1), (2) and (3) of Ministerial Direction 110. Paragraph 104 of the delegate's reasons applies para 8.5(4) of Ministerial Direction 110, which required the decision-maker to "proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case". In referring, in para 104, to the "Australian community's general expectations", it is not to be assumed or inferred that the delegate wrongly believed the plaintiff's conduct fell within the list specified in para 8.5(2) of Ministerial Direction 110, thereby triggering the application of the "particular" expectation in the second sentence of that paragraph. To the contrary, the fact that the delegate does not identify any such specific conduct of the plaintiff and instead refers at a high level of generality to para 8.5(2) as concerning "certain kinds of conduct" conveys that the delegate understood both that the plaintiff had not engaged in any kind of the specified conduct and that the plaintiff was therefore not subject to the particular expectation in the second sentence of that paragraph.
This reading of the delegate's reasons is reinforced by the fact that in para 104 the delegate refers only to the "Australian community's general expectations". Those "general" expectations are to be understood as a reference to the "norm" identified in para 8.5(1) (that "[t]he Australian community expects non-citizens to obey Australian laws while in Australia" and "[w]here a non-citizen has engaged in serious conduct in breach of this expectation ... the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia") and the statement in the first sentence of para 8.5(2) (that "non-revocation of the mandatory cancellation of a visa ... may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa"). The provision in the second sentence of para 8.5(2) beginning with the words "[i]n particular", as a matter of ordinary English text, operates separately and solely by reference to the specified conduct. Having already characterised the plaintiff's custodial sentence for his offending as reflecting the view of the sentencing court that the offending was "very serious", the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff's visa even though the plaintiff's conduct was not of the kind specified in para 8.5(2).
Nor is there any inconsistency between that evaluation and the delegate's recognition that the plaintiff would be in the Australian community for so long as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future. Paragraph 8.5(2), in saying that "the Australian community would expect that the person should not be granted or continue to hold a visa", must be understood in context. It is plain from the context that the "visa" being referred to in this sentence, in the case of a visa that has been subject to mandatory cancellation, is the visa that permitted the non-citizen to remain in Australia – such as, in the plaintiff's case, the TPV. The reference is not to the BVR, which includes mandatory conditions regulating the plaintiff's conduct and which ceases by operation of s 76AAA of the once removal of the non-citizen from Australia is reasonably practicable because of a third country granting the non-citizen a right to enter and remain in that country.
The plaintiff's challenge is based on agreed or undisputed facts that: (1) the plaintiff gave to the Department documents in support of his representations to the Minister to revoke the cancellation of his TPV; (2) those documents erroneously included a legal advice from counsel in respect of the plaintiff's prospects of appealing against his sentence; (3) the legal advice was the subject of legal professional privilege, having been provided by his then solicitor to the plaintiff under cover of a letter also provided to the Department stating that the enclosed legal advice (and related documents) were protected by legal professional privilege and the envelope in which they came was not to be opened nor the documents read or inspected by any person other than the plaintiff; (4) the plaintiff did not intend to waive that legal professional privilege when giving the legal advice to the Department; (5) the Department provided the legal advice to the delegate; and (6) the delegate read and quoted the legal advice in the delegate's reasons.
The delegate recorded in para 7 of the delegate's reasons that he had considered the representations made by the plaintiff and the documents provided in support and recorded in para 35, in the context of considering the nature and seriousness of the plaintiff's conduct leading to the plaintiff's conviction, that "[o]verall, [the sentencing judge] found [the plaintiff's] criminality to be of a high order Attachment H2". Attachment H2 is the legal advice. As noted, the legal advice concerned the prospects of the plaintiff successfully appealing against his sentence. The legal advice stated that the sentencing judge found the plaintiff's "criminality to be one of a high order", quoting from the sentencing judge's remarks on sentence. The legal advice concluded that an appeal against the severity of the sentence was unlikely to succeed.
The plaintiff submitted that the delegate was on notice that the legal advice was subject to legal professional privilege and had been provided in error, the knowledge of the Department of that fact being attributable to the delegate. Further, that the legal advice contained material adverse to the plaintiff in that it supported an inference that the sentence imposed on the plaintiff was not too severe and therefore had the effect of bolstering the delegate's view as to the seriousness of the plaintiff's offending. According to the submissions, the delegate's use of the legal advice denied the plaintiff procedural fairness and was legally unreasonable in the circumstances.
The problems for the plaintiff's submissions are twofold. First, it cannot be inferred that the Department or the delegate knew that the plaintiff had provided the legal advice to the Department in support of the plaintiff's representations in error. Second, the content of the legal advice concerned only the prospects of success of the plaintiff appealing against the severity of his sentence. These problems for the plaintiff are related in their consequences for the plaintiff's arguments. The consequences are that, in circumstances where the plaintiff's own representations included that he was "very wrong to commit" the offences, took "full responsibility for [his] actions", and felt "so remorseful" about his conduct, a reasonable inference was open to the Department and the delegate that the plaintiff had provided the legal advice in support of his representations that he recognised the wrong he had done and, as he said he wished, wanted only to "rebuild [his] life as a productive and law-abiding member of society". In the face of that reasonably open inference, it would not be inferred that the Department or the delegate knew that the plaintiff had not intended to waive legal professional privilege in providing the legal advice in support of the plaintiff's representations.
Further, the quote from the legal advice is itself a quote from the sentencing judge's remarks on sentence of the plaintiff, which the Department had separately provided to the delegate. The delegate could take no more from the legal advice than that separately established fact and that, given the sentencing judge's assessment of the seriousness of the plaintiff's offending, the plaintiff was unlikely to have been able to successfully appeal against the severity of his sentence. There is no suggestion in the delegate's reasoning that the legal advice had any effect on the delegate's assessment of the seriousness of the plaintiff's offending. It would have been irrational for the delegate to so reason as, the sentence having been imposed and not having been subject to appeal, the sentence was an incontestable fact, as was the sentencing judge's assessment that the offending was "of a high order". It therefore cannot be said that the legal advice could have bolstered the delegate's conclusion about the seriousness of the plaintiff's offending.
For these reasons, the legal advice did not constitute relevant material adverse to the interests of the plaintiff such as to attract an obligation of procedural fairness requiring disclosure to the plaintiff of his error and an opportunity for the plaintiff to claim legal professional privilege over the legal advice. Nor was any practical injustice caused to the plaintiff by not having been given that opportunity. To explain, the sentencing judge's sentencing remarks were relevant adverse material, but the plaintiff was on notice of those remarks and had the opportunity to make representations about them. Therefore, the quote from the legal advice in the delegate's reasons, being no more than a quote from the remarks of the sentencing judge, could not constitute separate relevant adverse material. The opinion in the legal advice that it was unlikely that the plaintiff could successfully appeal against the severity of his sentence is not mentioned in the delegate's reasons. No doubt, this absence reflects the irrelevance of that opinion. Given that the plaintiff had not in fact appealed against sentence, the delegate, in any event, was required to assume the sentence and the remarks on sentence of the sentencing judge to be correct.
Answer: yes.
a. misapprehended or failed to consider the legal consequences of the decision; and/or
b. reasoned in a way that was legally unreasonable?
Answer: no.
Answer: no.
a. denied the plaintiff procedural fairness; and/or
b. proceeded in a legally unreasonable manner,
by taking into account legal advice given to the plaintiff, without notice to the plaintiff?
Answer: no.
Answer: none.
Answer: the plaintiff.
The matter cannot be remitted to the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court of Australia as they do not have jurisdiction in respect of the matter: Migration Act 1958 (Cth), ss 476(2) and 476A; Judiciary Act 1903 (Cth), s 44. ↩
On 6 November 2024 the Minister granted to the plaintiff another Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa. ↩
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 at 162 [55] . ↩
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at 591 [17], 605 [54]. ↩
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth). ↩
Migration Regulations 1994 (Cth), regs 2.25AA(2) and 2.25AB(2). ↩
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. ↩
(2023) 280 CLR 137. ↩
Migration Regulations 1994 (Cth), Sch 2, cll 070.612(1) and 070.612A(1). ↩
(2023) 280 CLR 137. ↩
Plaintiff S22-2025
Minister for Immigration and Multicultural Affairs [2025] HCA 36
(2023) 280 CLR 137
(2022) 276 CLR 579
(1996) 185 CLR 259
(1993) 43 FCR 280
Extension of time granted; the jurisdictional-error grounds were rejected, no relief was granted, and the plaintiff was ordered to pay the costs.
The statutory conditions in s 486A(2) are satisfied. The extension of time is therefore granted.
The plaintiff accepted, in oral argument, that no mistake could be inferred to have been made by the delegate if the words "the type" of did not appear in para 117 of the delegate's reasons. It is settled, however, that reasons for decision of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error".7 It is not to be assumed that the delegate understood the power in s 195A(2) to be available when s 195A(1) expressly confines that power to a person in detention under s 189 of the Migration Act and the very purpose of the delegate in giving the relevant part of the delegate's reasons in which para 117 appears was to explain why the plaintiff could not be held in immigration detention given this Court's reasoning in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.8
Further, although the words "the type of" are inapt in their application to the visa the plaintiff could be granted, they are apt for the conditions to be imposed on any such BVR as only certain conditions are mandatory9 whereas other conditions are discretionary. In addition, apart from the words "the type of" in para 117, there is no suggestion in the delegate's reasons that the delegate wrongly believed that some type of visa, other than the BVR, would be available to the plaintiff.
Finally, in circumstances where it must be inferred from the internal departmental communications that the delegate knew the grant of the BVR to the plaintiff was being considered and was very likely to be granted on the same day as the delegate's decision refusing to revoke the cancellation of the plaintiff's TPV, the real import of para 117 is reasonably clear. The real import is twofold. First, that as a result of this Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs,10 the plaintiff could not be held in immigration detention for so long as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future and therefore would reside in the Australian community. Second, that the process by which it would be decided if the plaintiff would be granted a visa regulating his residing in the community and, if so, the conditions to be imposed on that visa would be the subject of separate consideration (and, by implication, a separate decision) from the decision the delegate was making not to revoke the cancellation of the plaintiff's TPV. It must be inferred that the unstated alternative if the plaintiff was not granted the BVR, that he would reside in the community without a visa as an unlawful non-citizen, was not mentioned by the delegate because he knew that the grant of the BVR was the overwhelming likelihood. Nothing in this reasoning involves a failure to consider the legal consequences of the delegate's decision.
It also cannot be inferred, therefore, that the delegate misunderstood that the plaintiff could be granted some type of visa other than a BVR. On the same basis, it cannot be concluded that the delegate's reasoning process was legally irrational or unreasonable. The Minister, via the Minister's Department, was "separately consider[ing]" the grant of the BVR to the plaintiff. The delegate's point, rightly made, was that the process involving any such grant was separate from his own decision-making process. Nor, in so saying, was the delegate failing to consider the application of the statutory scheme to the plaintiff and the resulting "binary" consequences of the delegate's refusal being that, for so long as there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future, the plaintiff could not be detained in immigration detention and therefore would be in the Australian community either under the BVR or not. To the contrary, the delegate was correctly recognising that the statutory scheme provided for the performance of the delegate's functions and exercise of the delegate's powers under s 501CA(4) of the Migration Act (the power of the Minister to revoke the cancellation decision) separately from the performance of other functions and exercise of other powers of the Minister to grant the BVR in accordance with reg 2.25AB(2) of the Migration Regulations, subject to conditions including the mandatory conditions.
For these reasons, the delegate complied with the obligation imposed by para 9(1)(a) of Ministerial Direction 110 to consider the legal consequences of the delegate's decision and each of the three ways in which the plaintiff puts this ground of challenge to the validity of the delegate's decision must be rejected.
For these reasons, the delegate complied with the obligation imposed by para 8.5 of Ministerial Direction 110.
For the same reasons, the plaintiff's submission that the delegate using the legal advice in the way in which the delegate did was legally unreasonable cannot be accepted. The delegate could have quoted the remarks of the sentencing judge directly; that the delegate did so indirectly by relying on the quote in the legal advice was neither unreasonable nor irrational in the circumstances of this case.