Po'oi v Minister for Immigration and Citizenship [2025] FCAFC 192

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192

Director of Public Prosecutions v Po'oi [2023] VCC 1659

Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1

GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265

Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438

Jama v Minister of Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 149

Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398

Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28

Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231

Po'oi v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 258

Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451

Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387

Administrative and Constitutional Law and Human Rights

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. I have been fortunate to have read a draft of the reasons herein of Kyrou and Needham JJ. I'm grateful for their Honours' thorough and scholarly analysis. Subject to one issue, I agree with the orders that they propose and, broadly, with the reasons for which they propose them.
2. The solitary issue upon which I should separately opine concerns the appellant's contention that "...something that is not a mandatory consideration doesn't need to be considered, but if it is considered then you have to get it right". It was said that a failure to "get it right" sounds as jurisdictional error in the form of "unreasonableness or illogicality". The plurality addresses that contention at [‎65]. I shall make my own observations about it.
3. The appellant's contention was said to reflect what Robertson J observed in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438, 457 [89], namely:

It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ. This may be an example of "an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria": Taveli v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 175; (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162.

1. His Honour was there astute not to state any proposition in terms as definitive as those preferred by the appellant. In any given case, it might be that a decision maker's failure properly to take account of a non-mandatory consideration that he or she has identified as material or dispositive reflects jurisdictional error in the form of legal unreasonableness or illogicality (of a kind recognised by authority). Legal unreasonableness, though, "...is inherently sensitive to context [and] cannot be reduced to a formulary": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 567 [59] (Gageler J). Its chameleonic nature is such that the court should refrain from recognising the appellant's contention as though reflective of some binding point of principle applicable in all cases.
2. Beyond that, I agree that the appeal should be dismissed and that the appellant should pay the Minister's costs. I echo the plurality's acknowledgment of the contribution of the appellant's pro bono counsel.

I certify that the preceding five (5)

numbered paragraphs are a true copy

of the Reasons for Judgment of the

Honourable Justice Snaden.

Associate:

Dated: 19 December 2025

1. The appellant was born in New Zealand in 1988 and is a New Zealand citizen. She first visited Australia in 1990 and, on her last return to Australia in 2007, she was granted a Class TY Subclass 444 Special Category (Temporary) visa. The appellant pleaded guilty in the County Court of Victoria to various offences and, on 13 September 2023, she was sentenced to a total effective sentence of 3 years' imprisonment with a non-parole period of 2 years. As the sentence was for a term of imprisonment of 12 months or more, the appellant did not pass the character test set out in s 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (Act). Consequently, on 4 October 2023, her visa was mandatorily cancelled under s 501(3A) of the Act.
2. On 13 October 2023, the appellant sought revocation of the cancellation of her visa under s 501CA(4) of the Act on the basis that, notwithstanding she did not pass the character test, "there is another reason why the [cancellation] decision should be revoked." On 22 February 2024, a delegate of the respondent (Minister) refused to revoke the cancellation of the visa (delegate's decision). On 28 February 2024, the appellant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate's decision. On 16 May 2024, the AAT set aside the delegate's decision and revoked the cancellation of the visa, which had the effect of reinstating it (AAT's decision).
3. On 2 June 2024, the Minister set aside the AAT's decision and cancelled the appellant's visa pursuant to s 501BA of the Act (Minister's decision) on the basis that the appellant did not pass the character test and that cancellation was in the national interest. As he was entitled to do so under s 501BA(3), the Minister did not afford the appellant an opportunity to be heard prior to making his decision. In making his decision, the Minister was assisted by a brief that had been prepared by the Department of Home Affairs, which comprised a submission, a draft decision and reasons for decision, and 86 attachments. The entire brief comprised 414 pages. The Minister adopted the decision and reasons for decision, signed the decision and noted the following on it: "Total time taken in considering submission and attachments: 1 hours 40 minutes".
4. On 4 July 2024, the appellant sought judicial review of the Minister's decision. Ultimately, she relied on the sole ground that the Minister "impermissibly de facto delegated his decision making to the person who drafted the reasons, because the time the Minister spent in 'considering submission and attachments' could not realistically have been sufficient for him to have personally considered all of that material." That ground was supported by three particulars.
5. On 27 March 2025, the primary judge dismissed the application for judicial review (Po'oi v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 258) (McElwaine J) (J).
6. The appellant has appealed against the primary judge's decision. Initially, her notice of appeal was to the effect that the primary judge erred in not upholding the ground as framed and particularised at first instance. Prior to the hearing of the appeal, she sought leave to amend the notice of appeal to include a further particular and to add a new ground. The proposed new ground is to the effect that the Minister, having self-identified impediments to the appellant's return to New Zealand as a critical consideration, failed to properly address it. The original ground of appeal and the proposed changes are set out [‎68] below.
7. For the reasons that follow, leave to amend the notice of appeal will be refused and the appeal will be dismissed.

Relevant provisions of the Migration Act 1958 (Cth)

1. Section 501(3A) of the Act obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied that the non-citizen does not pass the character test. Section 501(6)(a), read together with s 501(7)(c), provides that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more. Section 501CA(3) provides that, as soon as practicable after a cancellation of a visa under s 501(3A), the Minister must provide to the non-citizen information about the cancellation decision and invite them to make representations to the Minister about revocation of the cancellation decision. Section 501CA(4) provides that, if the non-citizen makes representations, the Minister may revoke the cancellation decision if the Minister is satisfied that the non-citizen passes the character test or "there is another reason why the [cancellation] decision should be revoked."
2. During the period relevant to this proceeding, s 500(1) of the Act provided that, if the delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4), the non-citizen could seek AAT merits review of the non-revocation decision. The AAT was replaced by the Administrative Review Tribunal on 14 October 2024.
3. Prior to 14 October 2024, s 501BA of the Act conferred power on the Minister to set aside a decision of the AAT to revoke the cancellation of a visa. It relevantly provided as follows:

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

...

(b) the Administrative Appeals Tribunal;

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 or 7

(5) A decision under subsection (2) is not reviewable by application under Part 5 or 7. ...

1. The appellant has had a series of abusive relationships in Australia. She has twin daughters who were born in January 2013. The father of the children has sole parental responsibility, and the appellant has not had any contact with them since around 2020. In recent years, the appellant has been in a stable relationship. All of the appellant's family are in Australia except for her father and other paternal relatives, including her paternal uncle.
2. The appellant suffers from a number of medical conditions, including: complex post-traumatic stress disorder; bipolar affective disorder type 2; acquired brain injury; and attention deficit hyperactivity disorder. She received assistance under an NDIS plan.
3. The appellant's adult criminal record dates back to September 2011, and includes offences such as: unlawful assault; aggravated burglary; theft; attempt to obtain property by deception; attempted home invasion; various motor vehicle offences; possessing a dangerous article; assault with a weapon; possessing drugs of dependence; possessing a prohibited weapon; failure to answer bail; and committing an indictable offence while on bail.
4. On 13 September 2023, the appellant pleaded guilty to the offences of: kidnapping (for which she was sentenced to 30 months' imprisonment); possessing ecstasy; driving while disqualified; committing an indictable offence while on bail; and theft. As we have already stated, she was sentenced to a total effective sentence of 3 years' imprisonment for all of these offences, with a non-parole period of 2 years. The kidnapping involved the use of a tomahawk and a firearm, and threats on the victim's life. The sentencing judge described the kidnapping as "prolonged" and "a significant example of a serious offence": Director of Public Prosecutions v Po'oi [2023] VCC 1659 at [47] (Judge Lauritsen).
5. On 13 October 2023, the appellant was convicted of negligently dealing with the proceeds of crime for which she was sentenced to 14 days' imprisonment, to be served concurrently with the earlier sentence of 3 years' imprisonment.
6. While the appellant was in prison, she completed a number of programs, including vocational and rehabilitative programs, and counselling sessions.
7. In support of her application for revocation of the mandatory visa cancellation of 4 October 2023, the appellant made representations in an undated letter to the Department, which ultimately became Attachment AT to the Minister's decision. That letter referred to the appellant's circumstances and emphasised: her connections with Australia; the supports she has here; the rehabilitative steps she has taken; her remorse; and her desire to be reconnected with her daughters. The letter contained the following statements which are relevant to the proposed amended notice of appeal:

My mother's decision to return to Australia was to flee an extremely violent relationship between her and my father. I was subjected to family violence and child abuse from a very young age. I have experienced many traumatic experiences in my childhood that included being sexually abused by my father's brother on multiple occasions. I am still deeply traumatised from those events and have since been diagnosed with Complex PTSD.

...

I am afraid to be deported because I fear for my life if I was to see my dad or his family because of all the abuse and sexual abuse I suffered as a child. I'll be homeless, jobless and most of all I would fear that my mental health would spiral out of control from not having family supports, not knowing anything or my surroundings not [being] able to see my daughters again and after working on myself and making great positive changes I fear it would undo everything I've worked so hard towards and honestly to me now just thinking about my headspace if I was there I would fear the suicidal thoughts because I would have nothing. I've been to New Zealand twice in 27 years and that was for [funerals]. All my family are here in Australia and my daughters are born here and have never left the country. I have NDIS here as a major support system for me [and] also my loving supporting family. ...

1. The appellant referred to the physical abuse by her father and the sexual abuse by her uncle in other documents that were before the delegate and the Minister. For example, in an undated "Personal Circumstances Form" (Attachment E), she referred to "Fear of Family Violence and being affected from what has happened" and "fear for my life if I see my abusers again" if she were to be returned to New Zealand. In addition, letters of support written by her relatives (Attachments AK to AN and AQ to AS) also referred to the physical and sexual abuse the appellant experienced in New Zealand.
2. The maker of the delegate's decision considered the appellant's statement in Attachment AT that she feared for her life if she were to be returned to New Zealand and thus potentially be in contact with her father and uncle. The delegate noted that the appellant had "previously been back to New Zealand to attend funerals and there is no imperative for her to return to the region in New Zealand where her father and his relatives reside."
3. In making its decision, the AAT complied with Ministerial Direction No. 99, as the AAT was then required to do under s 499(2A) of the Act. Direction No. 99 set out principles and considerations with which delegates of the Minister and the AAT had to comply in making decisions with regard to visas on character grounds under ss 501 or 501CA. Section 8 of Direction No. 99 listed "primary considerations", including: protection of the Australian community from criminal or other serious conduct; the strength, nature and duration of a person's ties to Australia; and the expectations of the Australian community. Section 9 set out "other considerations".
4. One of the "other considerations" set out in paragraph 9.2 of Direction No. 99 was "extent of impediments if removed", which was described as follows:

Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country.

1. The AAT used the structure of Direction No. 99 in dealing with the considerations set out in that direction. When reviewing the evidence, the AAT quoted extensively from Attachment AT, including the paragraphs set out at [‎22] above. Under the heading "Extent of Impediments if Removed", the AAT quoted paragraph 9.2 of Direction No. 99 and discussed each of the issues in subparagraphs (a), (b) and (c) of that paragraph. In paragraphs 132 and 137 of its decision, the AAT stated the following:

[The appellant's] evidence was that most of her extended family has left New Zealand and the only relatives she has in New Zealand are her father, who subjected her to violence and abuse as a child, and her uncle, who sexually assaulted her when she was 5 or 6. She claimed that she would not be able to avoid coming into contact with either of them if she returned and that this would adversely affect her mental health. The Tribunal accepts that the prospect of contacting either of these people would involve emotional and psychological stress for the Applicant, but the Applicant would have access to the same legal protections in New Zealand as other citizens to deal with any actual unlawful contact with either person should that eventuate. The absence of positive family support and the prospect of unwanted contact with her father and uncle are matters which could negatively impact the Applicant's mental health and represent a significant detriment to her establishing herself in New Zealand.

...

[T]he Tribunal is satisfied that the Applicant would face some significant impediments in establishing herself and maintaining basic living standards in New Zealand, and given the Applicant's mental health issues this consideration warrants substantial weight in favour of a decision to revoke the cancellation of the Applicant's Visa.

1. The AAT concluded that, weighing up the considerations set out in Direction No. 99, it was satisfied that on balance the considerations in favour of revoking the cancellation of the appellant's visa outweighed the considerations for not revoking it. Accordingly, the AAT was satisfied that there was another reason why the cancellation of the visa should be revoked under s 501CA(4)(b)(ii) of the Act.

Ministers' reasons for exercising the power in section 501BA of the Act

1. The submission provided by the Department to the Minister comprised 6 pages, the Minister's decision comprised a single page together with a 4 page list of the 86 attachments, and the Minister's reasons comprised 17 pages. The documents in combination comprised 28 pages. As we have already stated, inclusive of the attachments, the brief totalled 414 pages.
2. The Minister's reasons briefly summarised the procedural background and the relevant statutory provisions (including the character test) and stated that the Minister had chosen to proceed without giving the appellant an opportunity to be heard. The Minister's reasons added (at paragraph 10) that the Minister had, nevertheless, "given consideration to information given by Ms POOI in relation to the original request for revocation and as reflected in the decision record of the AAT in revoking the decision to cancel Ms POOI's visa."
3. The Minister then discussed the application of s 501BA of the Act under three main headings, namely, "National Interest", "Discretion" and "Conclusion". Under the heading "National Interest", the Minister used the following subheadings: "Protection of the community", "Expectations of the Australian community" and "Conclusion on national interest considerations". Under the heading "Discretion", the Minister included the subheadings: "Best interests of minor children", "Ties to Australia", "Legal consequences of the decision", "Impediments if removed to New Zealand", "Impact on victims" and "Impact on Australian business interests". All of these subheadings (other than "Conclusion on national interest considerations") reflect the provisions of Direction No. 99, even though the Minister was not bound to apply that direction.
4. The Minister's reasons refer to, and summarise the general effect of, a large number of attachments, including: Attachment AT; the AAT's decision (Attachment BC); and letters of support written by relatives of the appellant (Attachments AK to AN and AQ to AS).
5. The following paragraphs of the Minister's reasons are relevant for present purposes:

NATIONAL INTEREST

...

Protection of the community

...

30. I am extremely concerned by the nature of Ms POOI's offending. It involves violent offending and the use of weapons, including a firearm and tomahawk. Consistent with the Court and AAT's comments as to the seriousness of the offending, I consider that Ms POOI's criminal conduct was not only violent but a particularly striking example of prolonged offending of a fundamentally very serious type. ...

...

Risk to the Australian community

...

36. I have taken into account the sentencing remarks of 13 September 2023, which confirm some of Ms POOI's claims in her submissions and oral evidence at the AAT, indicating that she grew up in an exceptionally dysfunctional family environment, with her Tongan father being an alcoholic who was violent to her mother and the children, including Ms POOI. Ms POOI claims she was raped by her uncle several times from the age of five or six. She moved to Australia in 1996, but was kicked out of home when aged 13 after an argument with her mother's then boyfriend. She later reported to a psychologist that while living on the streets, at the age of 14, she was raped by two men. Her mother sent her to live in her father's home in New Zealand, aged 15. She was tasked with caring for her younger half-siblings while her father lived a criminal lifestyle and used drugs. Ms POOI returned to Australia while still a teenager ... Attachment B.

...

39. Ms POOI's undated statement to the AAT stated that whilst living on the street at the age of 14 she was raped by two men, causing her to use drugs and alcohol as a coping mechanism. Ms POOI claims her criminal history is a direct result of her mental health, and her drug and alcohol use which relates to the physical, mental, sexual and emotional abuse she has suffered in her life Attachment AT.

...

66. On balance, whilst I accept that Ms POOI's risk of reoffending is low I consider it to be significant in circumstances where should she engage in similar conduct again, notably violent offences, it would be likely to result in serious psychological and/or physical harm to members of the community. I have given this consideration significant weight in support of cancellation being in the national interest.

67. ... I consider that the need to protect the Australian community from criminal or other serious conduct weights heavily in support of cancellation in this case in the national interest.

Expectations of the Australian community

...

70. I acknowledge that the AAT found there were mitigating factors in Ms POOI's case against giving the community expectations full weight and only gave this consideration limited weight in light of Ms POOI's status as a relatively young woman who has been the victim of repeated physical, emotional and sexual abuse; that she suffers from a range of serious mental health conditions; her struggles with drug and alcohol abuse since she was a teenager; and her status as a mother of twin daughters of whom ... she has lost custody Attachment BC.

71. In my view, this consideration, as it relates to the national interest, is about what the Australian community expects as a norm, rather than how the community might weigh up the specific circumstances of an individual non-citizen. Nevertheless, I have considered Ms POOI's specific circumstances to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons. I have attributed this consideration significant weight towards a finding that it is in the national interest to cancel Ms POOI's visa.

Conclusion on national interest considerations

...

73. In the specific case of Ms POOI, and her criminal history which includes violent offending and the use of weapons, I have considered the nature and seriousness of her conduct and have concluded that it is very serious. I have also considered the potential physical and/or psychological harm that would result if Ms POOI were to relapse and reoffend. I have also considered the likelihood of Ms POOI reoffending and found that there is a low, but not negligible, risk of Ms POOI reoffending in a similar way in the future. I have also considered the expectations of the Australian community.

74. Having regard to all of the above, I conclude that the use of my discretionary power to cancel Ms POOI's ... visa is in the national interest.

DISCRETION

75. Recognising that the power to cancel a visa under s 501BA is discretionary, I considered whether there were relevant considerations that might support a decision not to cancel Ms POOI's visa despite my satisfaction that it is in the national interest to do so.

76. In exercising my discretion, I have given due weight to the matters discussed above under National Interest, but will rely on that discussion rather than repeat it here. In addition, I have taken into account the following considerations.

...

Ties to Australia

...

96. A number of [the appellant's] relatives have provided letters of support for Ms POOI which confirm her very unfortunate early life and her recent rehabilitation efforts, and also emphasise that returning Ms POOI to New Zealand without access to her family's support, NDIS mental health support and professional family services would result in irreparable psychological harm and retraumatise her Attachments AK-AN, AQ-AS.

...

Impediments if removed to New Zealand

106. I have considered the extent of any impediments that Ms POOI, if removed from Australia to New Zealand, will face in establishing herself and maintaining basic living standards, in the context of what is generally available to other citizens of New Zealand, taking into account the following factors.

Age and health

...

Language and/or cultural barriers

109. ... I acknowledge that New Zealand would at first be a somewhat strange environment for Ms POOI, having not lived there since her early childhood and having no positive personal support available to her there.

Social, medical and/or economic support available in New Zealand

110. Ms POOI submits that she will face significant practical, financial and emotional hardship if returned to New Zealand as a result of being separated from her family members, and completely lacking any social, medical and emotional support. She claims that separation from her close family members would adversely affect her mental health and that she would have difficulties in receiving effective treatment for her medical and mental health conditions Attachments BA, BC.

111. I find that Ms POOI will face emotional hardship upon her return to New Zealand, as a result of her separation from her close family members, most particularly her mother, siblings and minor children ... . Separation from [her current partner] will also cause Ms POOI emotional hardship.

112. I also accept that Ms POOI's health concerns will add significantly to her difficulties in adjusting to life in New Zealand, although I find she would have access to health services, treatment and welfare services in New Zealand, of a standard comparable to those in Australia. Ms POOI may suffer some disadvantage if her medical records and history are not available to her or her health care provider in New Zealand.

113. In making its findings, the AAT was not provided with any evidence regarding the social, medical and/or economic support available to Ms POOI if removed to New Zealand, however did find that it was possible that not all of the types of assistance now available to her and the level of funding now approved under the NDIS Plan would be available to her in New Zealand.

114. I acknowledge that the AAT found Ms POOI would face some significant impediments in establishing herself and maintaining basic living standards in New Zealand.

115. On considering the above factors, I find that the limited family support available to Ms POOI in New Zealand and extensive health concerns and I give this consideration significant weight against supporting the decision to cancel Ms POOI's visa.

...

CONCLUSION

...

127. I find that the considerations against visa cancellation are clearly outweighed by the national interest considerations in this case.

1. The Minister's reasons referred to: the appellant's medical conditions (paragraphs 40 and 107); her NDIS plan (paragraphs 41, 48, 54, 56, 57, 65, 96 and 113); the rehabilitative steps she had taken (paragraphs 44 to 53); and the family and other supports available to her in Australia (paragraphs 54 and 56 to 59). In paragraph 40 of his reasons, the Minister referred to a Forensicare report dated 23 October 2023 (Attachment AE). In that report, the psychiatrist who authored it referred to the abuse and sexual abuse the appellant suffered from her father and uncle, respectively, and stated that deporting her to New Zealand "would have a severe negative impact on her mental health."
2. The final paragraph of the Minister's reasons stated that he had decided to exercise his discretion to set aside the AAT's decision and cancel the appellant's visa under s 501BA of the Act.

1. At trial, the appellant contended that the Minister was not provided with all of the attachments to the brief. The Minister called Ameeta Agarwal, a Departmental Liaison Officer, to give evidence about the process followed by her and other departmental officers in collating the brief for the Minister and the approach she observed the Minister adopt in considering the brief in this matter and the briefs in other matters that were presented to him on the same day.
2. Ms Agarwal stated that: 2 June 2024 was a Sunday; the Minister worked in his Parliament House office on that day to deal with a number of separate briefs relating to particular non-citizens; and the attachments for each brief were printed, collated, checked for completeness and placed in a separate stack for the Minister's consideration. Ms Agarwal said that the collated hard copy briefs were placed in separate stacks on tables within the Minister's office or on a table in an adjacent room and that the Minister worked interchangeably between these locations. Ms Agarwal stated that the Minister was "meticulous with respect to the lists of attachments" and that he asked a question about an attachment to one of the briefs.
3. The primary judge accepted Ms Agarwal's evidence and concluded that the Minister had before him all of the attachments to the brief relating to the appellant (J [29]).
4. The primary judge noted that the appellant did not contend that: the summary contained in the draft statement of reasons was factually inaccurate, incomplete or failed to give emphasis to material matters in favour of the appellant; the Minister could not rely on the summary; or the Minister was obliged to consider each of the attachments to the submission as mandatory relevant considerations (J [10] and [14]).
5. The primary judge found that the appellant did not discharge her onus of establishing that the Minister had failed to sufficiently engage with the brief and its attachments in order to lawfully exercise the power in s 501BA of the Act (J [44]). He stated that there was no objective basis to read the Minister's words "Total time taken in considering submission and attachments: 1 hours 40 minutes" as a statement by the Minister that he had read every single word on every single page in the brief. Rather, his Honour said, the obvious meaning of those words was that the Minister was entitled to rely on the Department's sifting and organising of the material and then bring his own mind to bear on what parts of the brief required detailed consideration as distinct from those parts which could be perused less intently, including the summary as contained in the draft statement of reasons which the Minister ultimately adopted as his own (J [47]).
6. The primary judge further stated that it was objectively clear that the Minister's statement conveyed no more than he had considered so much of the material as he considered necessary in order to be properly informed for the purpose of exercising his statutory power (J [48]).
7. The primary judge noted that counsel for the appellant had disavowed any contention that the Minister was required to read every word on each page of the brief but failed to identify how much material had to be read (J [51]). He stated that the Act leaves it to the Minister to evaluate what he considered relevant to the national interest question and that, provided the Minister gave consideration to the merits of the case as presented to him in the brief, it was entirely a matter for the Minister to determine the extent to which he considered the attachments (J [46] and [50]).
8. The primary judge rejected a submission by counsel for the appellant that the primary judge should undertake a comparison of how long it reasonably takes to read the brief or "material portions of it" to conclude that the Minister could not have done so in the recorded time of 1 hour and 40 minutes. The primary judge stated that this submission "proceeds down the dangerous pathway of merits review" (J [51] and [52]).
9. The primary judge concluded that Ms Agarwal's evidence that the Minister was meticulous with respect to the lists of attachments and the recorded time of 1 hour and 40 minutes simply did not support the drawing of any inference that the Minister had failed to bring his mind to the materials and thereby delegated his personal power to the anonymous drafter of the reasons for the decision (J [53]).

1. Under the Act, the Minister and the Minister's authorised delegates can exercise a range of powers and discretions involving the character test. Some of the powers and discretions can only be exercised by the Minister personally. The powers and discretions are not identical, and therefore the legal principles that may apply to the exercise of a particular power or discretion may not apply, or may not apply to the same extent, to the exercise of a different power or discretion. It follows that, in considering judicial pronouncements of legal principles, it is essential to bear in mind to which power or discretion those pronouncements relate and to critically examine whether legal principles that relate to a particular power or discretion are apposite for another power or discretion.
2. For example, s 501CA of the Act confers power on the Minister to revoke a cancellation decision. That section requires the Minister to invite a non-citizen to make representations to the Minister, and impliedly requires the Minister to consider any representations that are made in deciding whether the non-citizen passes the character test or whether there is another reason why the revocation decision should be revoked: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594 at [44] (Jagot and Beech-Jones JJ). A delegate may be authorised to exercise the Minister's power in s 501CA. By contrast, s 501BA does not require the Minister to seek any information from the non-citizen, expressly excludes the rules of natural justice, and does not authorise the delegation of the Minister's power. Accordingly, statements of principle regarding the Minister's decision-making obligations under s 501CA in cases such as Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 are not directly applicable to s 501BA.
3. Another example is s 501(3) of the Act, which empowers the Minister to refuse to grant a visa or to cancel a visa if the Minister reasonably suspects that the non-citizen does not pass the character test and the Minister is satisfied that the refusal or cancellation is in the national interest. Section 501(3) differs from s 501BA in two respects, namely, that the former refers to refusal to grant a visa or cancellation of a visa and to a reasonable suspicion that the non-citizen does not pass the character test, whereas the latter refers only to cancellation of a visa and requires the Minister to be positively satisfied that the non-citizen does not pass the character test. However, the two provisions are similar in relation to cancellation decisions in that they: do not set out any particular matters that the Minister must consider in addition to the character test and the national interest; exclude the rules of natural justice; and require the Minister to exercise the power personally.
4. The Full Court's observations in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 on the meaning of the word "consider" are not directly applicable to s 501BA of the Act. That is because that case involved a challenge to a decision of the Minister for Aboriginal and Torres Strait Islander Affairs under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which expressly required that Minister personally to consider certain information. That express requirement gave rise to "a more precisely defined duty binding on the Minister": Tickner at 462 (Black CJ).
5. In the present case, as the Minister exercised the power conferred by s 501BA of the Act, the Court must start with the terms of that section and the statements of principle in the authorities relating to that section. It is common ground that two of the preconditions in s 501BA (as in force prior to 14 October 2024) - that the AAT has made a decision to revoke the cancellation decision and that the appellant does not pass the character test - are satisfied. Accordingly, the key issues for consideration are whether the Minister erred in being satisfied that the cancellation of the appellant's visa is in the national interest and that he should exercise his discretion to cancel the visa. The exclusion of the rules of natural justice under s 501BA(3) and the non-delegable nature of the cancellation power under s 501BA(4) are relevant to a consideration of those key issues.
6. For the purpose of s 501BA(2)(b) of the Act, it is well accepted that the concept of the "national interest" is broad and evaluative: Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 at [43] (Derrington and Hespe JJ).
7. The Minister has broad decisional freedom to determine whether cancellation of a visa is in the national interest. That question is largely a political one. See Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231 at [18] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ); Palmer at [43].
8. As the Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest for the purposes of s 501BA of the Act, no factor constitutes a mandatory relevant consideration such that failure to take it into account may result in jurisdictional error in accordance with the principles in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 to 43 (Mason J). Accordingly, the Minister can decide which factors to take into account in making that determination in a particular case, including political considerations. See Plaintiff S297/2013 at [18]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [158] (Griffiths, White and Bromwich JJ); Palmer at [44] and [54] (Derrington and Hespe JJ).
9. Although the Minister's power to determine the national interest is broad, it is not unfettered or unbounded, and is subject to conventional judicial review principles: Graham at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
10. Section 501BA of the Act does not require the Minister to have regard to any particular matter not only in forming a view about the national interest but also in deciding whether to exercise the discretion in that section. That is, the section does not specify any mandatory relevant considerations in relation to these issues. It is up to the Minister to decide which matters to take into account, the extent to which the Minister considers them and the weight, if any, to be given to them. It follows that the Minister is not legally required to consider the reasons of the AAT or any particular material that was before the AAT, and that failure to consider those reasons or any such material could not, without more, go to jurisdiction. However, as with other material, the Minister may decide to take into account the reasons of the AAT or material that was before the AAT. See Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387 at [61] and [62] (McKerracher, Markovic and SC Derrington JJ); CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [32] (Owens J).
11. Because s 501BA of the Act requires the Minister to exercise the power in that section personally, the Minister cannot delegate its exercise to a departmental officer. However, the Minister can be assisted by departmental officers in exercising that power. For example, the Minister may rely on a summary of a particular non-citizen's circumstances prepared by departmental officers and may adopt as the Minister's own a draft decision and reasons that are drafted by the departmental officers, provided that the decision and reasons actually reflect the reasons why the Minister had reached the decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [19] (Keane, Gordon, Edelman, Steward and Gleeson JJ); McQueen at [3] and [21] to [23] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ).
12. In McQueen at [19], the plurality (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ) stated that a Minister may rely on their department to sift and organise material received and to prepare summaries of information, and that generally there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally. However, relying on the work of their department does not immunise a Minister from errors made by the department, as those errors can be attributed to the Minister (McQueen at [20] and [22]). At [22], their Honours referred to the following qualifications to the general principle that a Minister may rely on departmental summaries of material that were expressed in Carrascalao at [61] (Griffiths, White and Bromwich JJ): first, reliance upon a materially deficient summary may give rise to an inference that the decision-making process was improper; secondly, the use of a summary may not be appropriate when it seeks to capture a substantive argument if the force of the submission is thereby lost; and thirdly, account must be taken by a Minister of any statement in a summary which advises the Minister to consider a particular document or documents.
13. Irrespective of whether the Minister is assisted by a summary and other documentation prepared by departmental officers, the Minister must consider the merits of the particular non-citizen's case before deciding whether to cancel their visa under s 501BA of the Act. Much has been written about the meaning of the word "consider" in this context. The expressions "proper, genuine and realistic consideration" and "active intellectual process" have been used in many cases. Courts must exercise caution in using these expressions in order to avoid crossing the line between judicial review and impermissible merits review: Plaintiff M1/2021 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ).
14. In Carrascalao at [46], the Full Court (Griffiths, White and Bromwich JJ) stated that the ordinary meaning of the word "consider" in a judicial review context - where the relevant statutory provision does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise a power under that provision - "requires the Minister to engage in an 'active intellectual process' in assessing the merits of a case when contemplating the possible exercise of [that] power". The Court went on to say the following at [47] to [48]:

Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. ...

[A] finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.

1. In Carrascalao, the Court dealt with two separate cases. In both cases, the Minister had before him a draft decision, a draft statement of reasons for the decision and a submission - all of which were prepared by departmental officers - as well as detailed attachments. At [125] and [138], the Court held that, at a minimum, the Minister had to read, digest and understand the summarised information in the departmental submissions in both cases, as well as make an assessment as to whether he needed to refer to any or all of the detailed attachments (as opposed to relying on the departmental summary of the material referred to in the attachments) in order to obtain a complete understanding of the merits of the cases. The Court added that the Minister also had to: read carefully both the recommendation page and the decision page; consider and make his decision; circle the relevant choice; sign, date and fill in other details by hand; and carefully review and sign the two detailed statements of reasons.
2. The principles set out in Carrascalao have been applied by the Full Court in subsequent cases, including Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [54] to [60] (Murphy and Rangiah JJ). We adopt those principles for the purposes of deciding the present case, while being conscious of the need to avoid engaging in impermissible merits review.
3. Provided that the Minister engages in an active intellectual process in assessing the material presented to the Minister for the purpose of determining whether to exercise the power in s 501BA of the Act, there is no fixed minimum time period that the Minister must spend considering that material. The time required to engage in that process will vary depending on the circumstances of each case, including the nature and volume of the material.
4. In Chetcuti at [101], the majority (Murphy and Rangiah JJ) held that a period of 11 minutes was insufficient for the Minister to engage in the requisite active intellectual process in relation to approximately 130 pages of material. In Carrascalao at [129], the Full Court held that a period of 43 minutes was insufficient for a combined total of approximately 700 pages for the two cases that were before the Minister. In Ba v Minister for Immigration and Multicultural Affairs [2025] FCA 1239 at [51] to [55], Neskovcin J did not accept a submission that a period of 55 minutes was insufficient for a total of over 1,000 pages. These cases, and others which have considered challenges to the Minister's decision based on the time spent considering the material before the Minister, do not establish any form of precedent or even provide any guidance about what period of time is or is not sufficient. Each case depends on its own facts.
5. A non-citizen who seeks judicial review of the Minister's decision under s 501BA of the Act on the basis that the Minister did not engage in an active intellectual process in assessing the material presented to the Minister, bears the onus of adducing evidence sufficient to justify the drawing of an inference that it is more likely than not that the Minister failed to so engage: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Chetcuti at [66] and [96] (Murphy and Rangiah JJ). See also Carrascalao at [‎58] above.
6. A decision of the Minister under s 501BA of the Act will be invalid if it is legally unreasonable in the sense discussed by the plurality (Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li [2013] HCA 18; [2012] HCA 61; (2013) 249 CLR 332 at [76], namely, that the impugned decision lacks "an evident and intelligible justification". Other expressions used to describe legal unreasonableness include that the impugned decision is arbitrary, capricious, illogical, irrational or perverse.
7. Legal unreasonableness can arise in many ways. An instance is where the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case but then fails to consider that matter either at all or misconstrues or misunderstands it to such an extent as to amount to a constructive failure to consider it: see Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Robertson J). In our opinion, if the Minister expressly or impliedly states that a particular matter is sufficient in itself to dispose of the case - that is, the Minister identifies the matter as a proper basis for disposing of the case - but the Minister actually or constructively fails to consider that matter, then the Minister's decision would be legally unreasonable and thus vitiated by jurisdictional error.
8. The Minister's reasons for exercising the power in s 501BA of the Act to cancel a non-citizen's visa must be considered holistically. Where the reasons adopt a structured approach, with particular issues being dealt with sequentially (with or without the use of headings), the reference to a matter in one part of the reasons but not in a subsequent part where it might also be said to be relevant does not necessarily mean that the matter was not taken into account in assessing the issue discussed in the subsequent part: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ).

1. As we have already stated, the original sole ground of appeal reflected the ground of review that was pursued at first instance and, prior to the hearing of the appeal, the appellant sought leave to add an additional particular and a second ground of appeal.
2. The original ground and the proposed amendments are set out below, with the proposed changes underlined.
   1. The primary judge erred in not finding that the Minister impermissibly defacto delegated his decision making to the person who drafted the reasons, because the time the Minister spent 'considering submission and attachments' could not realistically have been sufficient for him to have personally considered all of that material

Particulars

(i) The Minister stated in the decision record that he spent 1 hour and 40 minutes 'considering submission and attachments'.

(ii) The time of 1 hour and 40 minutes could not realistically have been sufficient for him to have personally considered all of that material, having regard to the volume of the material;

(iii) It can be inferred from the fact that the Minister signed off on reasons for a decision which were unintelligible and incomplete in relation to a consideration the reasons purportedly focussed on - being impediments to the appellant's return to New Zealand - that the Minister did not personally consider the material or the decision: paragraphs [110]-[115] of the reasons.

(iv) In the premises of (i)-(ii) above:

1. the statement that the Minister had spent 1 hour and 40 minutes is to be construed as the Minister stating that he had spent that time considering some but not all of the 'submission and attachments';
2. the person who drafted the reasons was the person who factually considered the 'submission and attachments', as well as factually have [sic] whether the Tribunal's decision should be set aside and substituted with an adverse decision;
3. the Minister de facto delegated the power to make the decision to that person.

1. The Minister failed to read, identify, understand and evaluate significant matters in relation to a consideration he purportedly focussed on, being impediments to the appellant's return to New Zealand. He failed to make the factual findings necessary to provide an intelligible justification for his decision regarding the appellant's impediment to return. The decision is flawed by failure to consider something that was critical according to the criteria self-identified by the decision maker. The errors of the person who wrote the decision thereby infected the Minister's decision.

1. We will consider the original ground of appeal with the three original particulars before discussing the proposed amendments and whether leave should be granted in relation to them.

1. The main focus of the appellant's submissions on appeal was proposed ground 2 and the proposed additional particular to ground 1. To the extent that she made submissions in support of ground 1 in its original form, the appellant's submissions were to the following effect. First, the Minister was required to actively engage with the material that the Department provided to him. Secondly, the information before the Minister was voluminous (comprising 414 pages) and complex. Thirdly, whilst the amount of time spent by the Minister in and of itself is insufficient to establish error, in light of the relatively short time that the Minister spent considering the voluminous and complex material, it can be inferred that the Minister failed to actively engage with the material and thereby fell into jurisdictional error. That error can be characterised either as the Minister not discharging his duty to actively engage with the material before him or that the Minister did not make the decision personally but impermissibly delegated the decision-making function to the person who prepared the draft decision.
2. In essence, the appellant's submissions in support of ground 1 in its original form amount to a re-agitation of the contentions she made at trial, which the primary judge rejected. In our opinion, his Honour was right to do so.
3. The appellant has simply not discharged her onus of establishing that the Minister did not engage in an active intellectual process in assessing the merits of her case in deciding to exercise the power in s 501BA of the Act. In accordance with the principles set out at [‎45] to [‎66] above, the Minister was not required to read every document in the departmental brief. There was nothing in the brief that suggested that the Minister had to read any particular attachment. Accordingly, it was sufficient for the Minister to read the departmental submission of 6 pages, the single page decision and the 17 page reasons for the decision, and such of the 86 attachments that he considered appropriate to read personally, in order to decide whether to adopt the decision and the reasons as his own. One hour and 40 minutes was, objectively, more than adequate for this purpose.
4. Within that time, the Minister would have been able to perform all the tasks that the Full Court stipulated in Carrascalao (see [‎59] above). The Minister had sufficient time to read some of the attachments, such as Attachment AT, the AAT's decision (Attachment BC) and the relatives' letters (Attachment's AK to AN and AQ to AS) if he chose to do so, and in such detail as he thought appropriate.
5. The Minister's ability to obtain an understanding of the merits of the appellant's case was facilitated by the detailed nature of the draft reasons and the fact that they summarised key attachments and provided cross-references to them to enable the Minister to quickly find them if he chose to do so, and to spend such time as he considered appropriate in looking at them. Thus, even if it is accepted that the material relating to the appellant was voluminous and complex, this was no obstacle to the Minister engaging in an active intellectual process in assessing the merits of her case in deciding to exercise the power in s 501BA of the Act. The primary judge was right to find that the Minister did engage in such a process and that the decision not to revoke the cancellation decision was made by the Minister personally rather than by the person who prepared the draft decision.

Proposed ground 2: Failure to properly address impediments if removed to New Zealand

1. As the appellant needs leave to agitate the proposed amendments, we will first consider the principles for the grant of leave and then discuss in more detail one of the matters relevant to the exercise of the discretion to grant leave, namely, the merits of the proposed new particular and ground, which are interrelated. They concern the statements made by the appellant - particularly in Attachment AT - about the impediments that she would face if she were to be returned to New Zealand. She said that she feared for her life if she were to be returned to New Zealand where her father (who had abused her) and her uncle (who had sexually abused her) continue to live and where she will not have the same supports, particularly NDIS-type support to manage her medical conditions.

1. An appeal court has a discretion to permit a new issue or ground to be argued on appeal where it considers that it is expedient in the interests of justice to entertain the issue or ground: Jama v Minister of Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 149 at [31] (Rangiah, Snaden and Wheatley JJ), citing CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [35] (Murphy, Mortimer and O'Callaghan JJ). Matters relevant to the exercise of the discretion include: any explanation as to why the proposed new issue or ground was not argued at first instance; whether the proposed new issue or ground turns solely on a question of law; any prejudice to the respondent; and the merits of the proposed new issue or ground: Jama at [31] to [32] and the authorities there cited.
2. In the present case, senior counsel for the appellant (who did not appear at trial) candidly conceded that the reason for the proposed amendments is a change in counsel. As the appellant was represented at trial by competent counsel who had available to them the same material that was available to current counsel, this militates against leave being granted.
3. Whether the new issue or ground turns solely on a question of law and whether the respondent will be prejudiced by the grant of leave are often interrelated. That is because, if the new issue or ground turns entirely on a question of law (such as the proper interpretation of a statutory provision), the granting of leave will often not prejudice the respondent if they are legally represented. However, if the new ground involves factual issues which may have been met with different evidence at trial, the respondent may be prejudiced by being deprived of the opportunity of meeting that ground with such evidence, and this may be a powerful reason for refusing leave. This was recognised in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 to 8, where the majority (Gibbs CJ, Wilson, Brennan and Dawson JJ) said: "In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards". (Emphasis added.)
4. Counsel for the Minister submitted that, if the new issue had been pursued at trial, there was a possibility that it could have been met by evidence. Counsel did not contend that the Minister would have given evidence personally, but argued that Ms Agarwal could have been asked questions about whether she had direct knowledge of the Minister's practice in looking at particular kinds of documents in decision-making of the type that occurred in the present case. Counsel also argued that Ms Agarwal's evidence could have informed the question of whether the Minister was likely or unlikely to have read documents such as the AAT's reasons which recorded the very matters that the appellant says the Minister overlooked.
5. Senior counsel for the appellant submitted that any evidence by Ms Agarwal about what parts of the material the Minister thought about and considered would be inadmissible because she could not give evidence as to the Minister's state of mind. Senior counsel added that evidence about the Minister's usual practice in relation to reading reasons of the AAT would not assist the Minister because, even if the Minister had read the AAT's reasons, paragraph 115 of the Minister's reasons is meaningless and lacks factual findings.
6. Coulton makes clear that a respondent does not need to show that new evidence would have been called or that any new evidence that was called would have met the proposed new issue or ground. It is sufficient if new evidence may have been called which may have met the proposed new issue or ground. In the present case, it is possible that Ms Agarwal could have given evidence that may have assisted the Minister in meeting the issue raised by the proposed amendments in the manner contended by counsel for the Minister. Accordingly, the Minister may be prejudiced by leave being granted to the appellant to raise that issue. This militates against the granting of leave.
7. The question of the merits of the issue raised by the proposed amendments will be discussed in detail below. As will be seen, we have formed the view that the issue lacks merit. As all of the discretionary considerations militate against the granting of leave, leave will be refused.

Merits of the proposed additional particular and new ground

Parties' submissions on the proposed additional particular and new ground

1. The proposed additional particular to ground 1 and the proposed ground 2 involve a fundamental change in the appellant's case. That is because they involve departure from the position adopted by the appellant's then counsel at trial, that it was no part of the appellant's case that the departmental summary was factually incorrect, inadequate in some material way or otherwise deficient. At the heart of the appellant's new case on appeal is that the draft decision prepared for the Minister was indeed deficient because it omitted a matter which was said to have been identified in the decision as important under the rubric of "Impediments if removed to New Zealand".
2. The appellant accepted that the issue of the impediments that she would face if she were returned to New Zealand was not a mandatory relevant consideration which the Minister was obliged to consider. However, so it was said, the Minister fell into jurisdictional error in relation to his consideration of the impediments issue for the following reasons:

(a) In Attachment AT and other documents she submitted to the Minister's delegate and the AAT (which were before the Minister), the appellant made representations about the impediments she would face if she were removed to New Zealand. Those impediments were: lack of housing; the absence of family support; loss of access to the NDIS to manage her medical conditions; and re-traumatisation and fear for her life in encountering her father who had abused her and her uncle who had sexually abused her.

(b) In his reasons, the Minister self-identified the impediments that the appellant would face if she were removed to New Zealand as a matter of significance to his decision. Accordingly, in order to engage in an active intellectual process in assessing the merits of her case and reach a rational conclusion, the Minister was required to consider and make factual findings on the representations she had made about the impediments.

(c) The Minister's reasons demonstrate that he failed to understand the nature and scope of the appellant's representations about the impediments. He did not refer to or make any factual findings regarding her fear for her life if she returned to New Zealand or the absence of housing, and he did not make sufficient factual findings about the availability or otherwise of NDIS-type supports in New Zealand to assist her with her medical conditions. Nor did the Minister identify the "extensive health concerns" to which he referred. Accordingly, the Minister failed to engage in an active intellectual process in assessing the impediments. He expressed no intelligible conclusion on the weight he accorded to each impediment and thus constructively failed to consider them.

(d) The statements the Minister made in his reasons regarding the impediments the appellant would face if she were removed to New Zealand were non-sensical and incomplete, and failed to provide an evident and intelligible justification for his decision.

(e) The Minister's failure to properly consider the issue of impediments which he self-identified as significant to his decision constituted jurisdictional error for the purposes of proposed ground 2 either on the basis that the Minister failed to properly engage with the material before him, or on the basis that his decision is unintelligible and incomplete, and therefore legally unreasonable.

1. The appellant relied on Jabbour, LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 and CRRN for the proposition that, if a decision-maker self-identifies a matter as important to their decision, they are required to consider that matter and make factual findings in relation to it, in order to provide an intelligible justification for their decision.
2. The appellant focused particularly on paragraphs 106 to 115 of the Minister's reasons. She submitted that, in those paragraphs, the Minister purported to consider the issue of the impediments the appellant would face if she were returned to New Zealand and purported to have regard to the appellant's submissions in relation to that issue. The appellant argued that the Minister not only failed to consider her fear for her life due to the presence of her father and uncle in New Zealand, but inexplicably stated that the appellant would have "limited family support" in New Zealand. According to the appellant, that statement was irreconcilable with her stated fear for her life if she were returned to the place where her father and uncle lived.
3. The appellant was particularly critical of paragraph 115 of the Minister's reasons. She submitted that that paragraph was unintelligible and described it as "gibberish". That was said to be because it was not clear what the Minister meant by "this consideration" and the Minister failed to articulate what finding he had made.
4. The appellant did not suggest that the exercise of the Minister's power under s 501BA of the Act is in the nature of an appeal from the AAT which requires the Minister to find error in the AAT's decision or to explain why he adopted a different approach to that of the AAT. However, she submitted that the contrast between the AAT's engagement with her fear for her life due to the presence of her father and uncle in New Zealand in the context of impediments, and the absence of any mention of this fear in the Minister's reasons indicates that the Minister failed to actively engage with the impediments issue which the Minister had self-identified as important to his decision.
5. The appellant submitted that the proposed additional particular to ground 1 provided further support for that ground. That was said to be because the omission from the reasons prepared for the Minister of the appellant's fear for her life if she were to be returned to New Zealand, enabled the Court to infer that the Minister did not personally consider the material before him relating to this important issue in the limited time that the Minister devoted to considering the brief. According to the appellant, the Minister fell into jurisdictional error either because he failed to properly engage with the material or because the decision signed by the Minister was not his decision but that of the departmental officer who prepared it.
6. The Minister submitted that the appellant's contentions should be rejected because the Minister was not legally obliged to consider the representations previously made by the appellant in relation to impediments and, in any event, the Minister did consider them in his reasons.

Decision on the proposed additional particular and new ground

1. In our opinion, the appellant's submissions in support of proposed ground 2 and the proposed additional particular to ground 1 cannot be accepted. Critical to those submissions is the contention that the Minister self-identified the impediments as previously represented by the appellant to the Minister's delegate and the AAT as a matter of significance to his decision, and that this self-identification imposed an obligation on the Minister to make factual findings on those impediments on the basis of up to date information and engage in an active intellectual process in assessing them. This contention is incorrect both legally and factually because it is inconsistent with the principles set out at [‎45] to [‎66] above and does not fairly and accurately reflect the contents of the Minister's reasons.
2. The appellant summarised the gist of her legal contention as follows: "if you say you're going to consider something_,_ then you have to consider it properly" and "if the Minister self-identifies something as a factor, it needs to be considered properly". No authority dealing with s 501BA of the Act, properly considered, supports a broad legal principle to this effect.
3. Jabbour, LJTZ and CRRN, upon which the appellant relied, do not assist her.
4. Jabbour did not deal with the exercise of a statutory power, let alone s 501BA of the Act. The case supports the proposition set out at [‎65] above, which applies where the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case. The appellant has not contended that the Minister identified the impediments issue (either as described by the appellant or by the Minister) as a proper basis for disposing of her case.
5. LJTZ dealt with s 501BA of the Act, but the decision was informed by very unusual facts which demonstrated that the Minister's decision-making had seriously miscarried. The Minister in that case stated in his reasons that he had given consideration to representations the applicant had made to the AAT, but that statement was false because those representations were not in the material presented to the Minister. Charlesworth J was clearly correct in concluding at [50] to [61] that the Minister's decision was illogical and irrational, and thus legally unreasonable. LJTZ is distinguishable from the present case, as there is no suggestion that the Minister made any false statement in relation to the appellant's case.
6. In LJTZ at [46], [82] to [86], [100] and [111], there are references to the Minister identifying certain matters as "relevant factors" in relation to the exercise of the Minister's power in s 501BA(2) of the Act. Interpreting those references in the manner most favourable to the appellant, they could be seen as supporting the proposition that, in order for the Minister's exercise of that power to be within the bounds of legal reasonableness, the Minister is required to make findings of fact about those matters on the basis of up to date information and to identify the weight to be afforded to them in reaching the requisite state of satisfaction for the purposes of that section. However, it is unlikely that Charlesworth J intended that her observations be interpreted in this manner because such a proposition was not necessary to the resolution of the case before her (see Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 at [19] (Charlesworth J)). We do not interpret her Honour's observations as articulating a general legal principle to the effect of the abovementioned proposition. Such a general legal principle would be inconsistent with the nature of the power in s 501BA, as explained in decisions of the Full Court and the High Court.
7. In circumstances where s 501BA of the Act does not set out any mandatory relevant considerations in addition to the two preconditions to the exercise of the Minister's power in s 501BA(2), the fact that the Minister may identify a particular factor as "relevant" to the Minister's decision cannot clothe that factor with the same legal consequences as a mandatory relevant consideration unless the Minister expressly or impliedly treats that factor as a proper basis for disposing of a case (see [‎65] above). Failure to make findings of fact on the basis of up to date information in relation to a factor described as "relevant" by the Minister in exercising the broad discretionary power in s 501BA, without more, does not go to jurisdiction.
8. In Palmer at [188] to [192], Feutrill J referred to LJTZ with approval. However, his Honour did not, in terms, state that identification of a factor by the Minister as "relevant" to the Minister's decision carries with it an obligation to make findings of fact in relation to it on the basis of up to date information and to identify the weight to be afforded to it. His Honour used expressions such as material that "is essential to the exercise of power", "current information ... that was manifestly material and relevant" and information that was "so material or relevant to the topic that the Minister had identified that to ignore the information would defy logic or rationality and meet the description of arbitrary or capricious decision-making".
9. To the extent that Feutrill J expressed support for a principle that was wider than the principle set out at [‎65] above, his views are inconsistent with the following statement of Derrington and Hespe JJ in Palmer (at [123]) which, in our respectful opinion, is correct:

Ms Palmer also framed her case on the basis that the overlooking of the material amounted to a failure to consider relevant information. However, that characterisation of the error is also founded upon a denial of the nature of the power in s 501BA(2). The absence of any obligation to accord natural justice to the visa holder has the consequence that the only material which might be sent to the Minister by the visa holder which is legally relevant to the Minister's decision is that which he or she chooses to consider. No error can arise from the Minister ignoring any material received in the absence of any obligation to consider it. As was observed in EUF20 in relation to a relevantly indistinguishable power, being s 501(3) of the Act, there is no free-standing obligation to have regard to new information received by the Minister even if it was possibly relevant. Indeed, given the exceptional nature of the power in s 501BA(2): DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 at [13]: and the relative decisional freedom of the Minister as to what might be considered in determining what is in the national interest: Vargas at [61]: any failure of the Minister to consider material which was presumptively relevant to the decision cannot, without more, go to jurisdiction: Vargas at [62].

1. CRRN can be seen as an example of the application of the principle set out at [‎65] above. In that case, the Minister, in substance, treated protection of the Australian community as a proper basis for disposing of the case and identified the risk of the applicant re-offending as the relevant threat to that community. It was not in dispute that the risk of the applicant re-offending would decrease if he received structured treatment and support for his mental illness and that cancellation of his visa would result in him continuing to reside within the Australian community rather than being deported or held in detection. The Minister's decision to cancel the applicant's visa was legally unreasonable because the cancellation rendered him ineligible to receive the treatment and support he needed under the NDIS for his mental illness and thus increased the risk of re-offending (see at [46], [55], [58] and [61] (Owens J)). CRRN does not support the broad legal principle contended for by the appellant. In any event, CRRN is clearly distinguishable from the present case because the Minister did not treat impediments that the appellant would face if she were removed to New Zealand as a proper basis for disposing of the appellant's case.
2. The appellant also relied on recent first instance decisions such as BQQ25 v Minister for Immigration and Citizenship [2025] FCA 1279 (Hill J) (which concerned s 501(1) of the Act rather than s 501BA), GRCF v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 415 (Bennett J) and Ba (Neskovcin J).
3. It is not necessary for us to discuss these or any other cases. It suffices to say that the broad legal principle contended for by the appellant does not represent the current law. If that principle were to be accepted, it would blur the distinction between jurisdictional and non-jurisdictional error.
4. The appellant's contention summarised at [‎91] above is factually incorrect because, in his reasons, the Minister identified impediments resulting from the appellant's removal to New Zealand by reference to the criteria set out in Direction No. 99 rather than by reference to the appellant's description of impediments. This is evident from the structure of the Minister's reasons, which reflects paragraph 9.2 of Direction No. 99. In his reasons, the Minister dealt with each of the criteria in that paragraph and expressed conclusions in relation to them. As the Minister was not obliged to take into account the impediments as framed by the appellant, he would not have fallen into jurisdictional error if he had not considered the impediments as framed by her.
5. However, even though the Minister was not obliged to consider, evaluate and make findings about the impediments as framed by the appellant, a fair and holistic reading of the Minister's reasons indicates that he did, in substance, do so to the extent that he thought appropriate for the purpose of making his decision. As pointed out by counsel for the Minister in their written submissions:

(a) When considering "Factors contributing to past conduct", the Minister took into account that the appellant grew up encountering violence from her father and was sexually assaulted by her uncle, and that when she was 15 years old, she was sent to live with her father in New Zealand and this impacted her drug and alcohol use (see paragraphs 36, 39 and 70 of the Minister's reasons at [‎33] above).

(b) When considering "Remorse and rehabilitation", the Minister noted:

(i) the appellant's mother had given evidence to the AAT that she would be willing to provide housing for the appellant (paragraph 57 of the Minister's reasons); and

(ii) the appellant has "available professional support funded through the NDIS and it is submitted that such assistance would not be available to her if she was returned to New Zealand, which would place [her] at risk of significant and severe deterioration of her mental health" (paragraph 57 of the Minister's reasons).

(c) When turning to consider discretionary matters (including impediments arising from return to New Zealand), the Minister stated "I have given due weight to the matters discussed above under National Interest, but will rely on that discussion rather than repeat it here" (see paragraph 76 of the Minister's reasons at [‎33] above).

(d) When considering "Immediate family ties", the Minister noted:

(i) a letter from the appellant's mother that stated that the appellant "does not have any family remaining in New Zealand, so being returned there would be detrimental to her mental health" (paragraph 90 of the Minister's reasons); and

(ii) a letter from the appellant's half-brother that stated that "New Zealand is no longer a place where [the appellant] has safe and supportive family" (paragraph 92 of the Minister's reasons).

(e) When considering "Other family and social ties", the Minister noted numerous letters of support that emphasised that "returning [the appellant] to New Zealand without access to her family's support, NDIS mental health support and professional family services would result in irreparable psychological harm and re-traumatise her" (see paragraph 96 of the Minister's reasons at [‎33] above).

(f) When considering "Social, medical and/or economic support available in New Zealand", the Minister:

(i) noted the appellant's claim that she will: face significant practical, financial and emotional hardship if returned to New Zealand as a result of being separated from her family members; lack social, medical and emotional support; endure adverse effects to her mental health; and have difficulties in receiving effective treatment (see paragraph 110 of the Minister's reasons at [‎33] above);

(ii) found that the appellant would face emotional hardship on her return to New Zealand due to separation from her family and romantic partner (see paragraph 111 of the Minister's reasons at [‎33] above);

(iii) accepted that the appellant's health concerns would add significantly to her difficulties in adjusting to life in New Zealand, but that she would have access to health, treatment and welfare services, albeit that she might suffer some disadvantage if her medical records are not available in New Zealand (see paragraph 112 of the Minister's reasons at [‎33] above);

(iv) noted the AAT's finding that it was possible that the appellant's current level of NDIS funding would not be available in New Zealand and that she would face some significant impediments on return to New Zealand (see paragraphs 113 and 114 of the Minister's reasons at [‎33] above); and

(v) ultimately found that there would be limited family support available to the appellant in New Zealand and that there were extensive health concerns about her removal to New Zealand (see paragraph 115 of the Minister's reasons at [‎33] above).

1. It can be seen that, in the parts of the Minister's reasons discussed at [‎33] to [‎34] and [‎104] above, the Minister adverted to: the absence of family support in New Zealand; the potential loss of access to NDIS-equivalent supports for the management of the appellant's medical conditions; and the risk of the appellant being re-traumatised as a result of having to return to New Zealand, being the place where she said she had experienced abuse from her father and sexual abuse from her uncle.
2. It is true that the Minister did not expressly refer to the availability of housing in New Zealand. However, it can be inferred that he took this factor into account from the following statements: "she will face significant practical ... hardship if returned to New Zealand" (paragraph 110); "I find she would have access to ... welfare services in New Zealand" (paragraph 112); and "the AAT was not provided with any evidence regarding the social ... support available to Ms POOI if removed to New Zealand, however did find that it was possible that not all types of assistance now available to her ... would be available in New Zealand" (paragraph 113).
3. It is also true that the Minister did not in terms say that the appellant feared for her life if she were returned to New Zealand because of potential contact with her father and uncle. However, the Minister's reasons demonstrate that he was aware of the appellant's claims that: her father had abused her and her uncle had sexually abused her; this experience traumatised her; she and her relatives were concerned that she would be retraumatised if she were returned to New Zealand; and returning the appellant to New Zealand created a risk of adversely affecting her mental health. The Minister's awareness was similar to the conclusion of the AAT set out at [‎27] above, namely, that "the prospect of unwanted contact with her father and uncle are matters which could negatively impact the [appellant's] mental health".
4. Accordingly, the Minister did, in substance, deal with this aspect of the impediments issue that was raised by the appellant. Ismail makes it clear that it does not matter that the Minister did not refer to this impediment under the heading "Impediments if removed to New Zealand" in his reasons but did so in his discussion of the national interest. That is particularly so in light of the Minister's statement in paragraph 76 of his reasons that he gave due weight to the matters discussed under "National Interest" when considering the residual discretion.
5. As we have already stated, in paragraph 10 of his reasons, the Minister said that he had "given consideration to information given by Ms POOI in relation to the original request for revocation and as reflected in the decision record of the AAT in revoking the decision to cancel Ms POOI's visa." The evidence does not support an inference that it is more probable than not that the Minister did not read Attachment AT or the AAT's reasons (which quoted extensively from Attachment AT) and therefore he had no knowledge of the appellant's representations in Attachment AT and those made to the AAT regarding impediments. Accordingly, there is no evidentiary basis for concluding that the Minister's statement in paragraph 10 of his reasons is incorrect.
6. The 1 hour and 40 minutes that the Minister said he had spent considering the material before him was sufficient for him to read Attachment AT and relevant parts of the AAT's reasons. Also, the Minister's reasons contain numerous references to Attachment AT (namely, paragraphs 39, 45, 46 and 83 of the reasons) and the findings and other contents of the AAT's reasons (Attachment BC) (namely, paragraphs 6, 10, 29, 30, 36, 39, 41, 43, 48, 50, 51, 53 to 61, 63, 65, 70, 79, 80, 83, 84, 89, 91, 92, 97, 110, 113, 114 and 128 of the reasons). However, for the reasons discussed above, our analysis would not change even if the Minister did not read Attachment AT and the AAT's reasons.
7. It follows that the Minister did not fail to understand the nature and scope of the appellant's representations about impediments or fail to make findings in relation to them, to the extent he considered appropriate in reaching his decision. On the contrary, the Minister engaged in an active intellectual process in assessing the impediments to the extent he considered them relevant to his decision.
8. In criticising paragraph 115 of the Minister's reasons, the appellant has adopted an approach which is keenly attuned to the perception of error, contrary to the caution against doing so in Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). It is clear that paragraph 115 contains typographical errors. Read fairly, that paragraph conveys that the Minister made a finding that the appellant would have limited family support in New Zealand and that there are extensive health concerns if she were to be removed to New Zealand. The word "limited" should be read in the context of statements in earlier parts of the Minister's reasons that "New Zealand is no longer a place where Ms POOI has safe and supportive family" (paragraph 92) and that she had "no positive personal support available to her there" (paragraph 109).
9. As the Minister's reasons adopted the structure of "considerations" in Direction No 99, it is clear, in that context, that the "consideration" to which the Minister stated in paragraph 115 of his reasons that he gave "significant weight against supporting the decision to cancel [the appellant's] visa" is the "Impediments if removed to New Zealand".
10. We do not accept that paragraph 115, or any other part of the Minister's reasons, can fairly be described as "gibberish".
11. Read fairly and holistically, the Minister's reasons demonstrate that he cancelled the appellant's visa because he concluded that it was in the national interest to do so and that the discretionary matters militating in favour of cancellation outweighed those militating against cancellation, including the impediment issues raised by the appellant. The Minister's reasons contain an intelligible justification for reaching this conclusion, and there is nothing irrational or illogical about it.
12. It follows that the appellant has failed to discharge her onus of establishing jurisdictional error either on the basis that the Minister had failed to actively engage in an intellectual process in assessing the appellant's case, or that the Minister's decision is legally unreasonable. Accordingly, proposed ground 2 cannot be made out.
13. For the reasons that we have set out above for rejecting proposed ground 2, we also reject the proposed amended ground 1, which contains addition particular (iii).

1. For the above reasons, the appeal will be dismissed. As neither party submitted that costs should not follow the event, the appellant should pay the Minister's costs.

Acknowledgment of assistance of pro bono counsel

1. The Court is grateful for the assistance provided by counsel for the appellant, who upheld the finest traditions of the Victorian Bar in acting pro bono. Pro bono representation of litigants who are otherwise unable to secure legal representation facilitates equal access to justice and advances the administration of justice more generally.

I certify that the preceding one hundred and fourteen (114)

numbered paragraphs are a true copy of the Reasons for

Judgment of the Honourable Justices Kyrou and Needham.