Sajjad v Minister for Immigration and Citizenship

1. In the First Judgment at [21], after recording Mr Byrnes' submission that delegates who make cancellation decisions under s 116 have no statutory obligation to give reasons for their decision, I commented that the fact that a decision-maker does not have an obligation to give reasons for their decision may be relevant to the Court's assessment of whether there is a jurisdictional error in the decision. Mr Berg contended at AS [13], in reliance on Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 857, that delegates who make cancellation decisions under s 116 have a statutory obligation to give reasons for their decision. Mr Byrnes, in reply at RS [12], referred to ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 (ARK16) at [10] where Mortimer J stated:

A delegate of the Minister made a decision on 4 July 2016 not to waive Condition 8503 on the appellant's visitor visa. It appears to be the case, as the Full Court noted in Yaacoub v Minister for Immigration & Border Protection [2018] FCAFC 39 at [8] that the delegate was not required to give reasons for that decision. However, having provided a decision with reasons, a supervising court is entitled to take a decision record as expressing the delegate's reasoning on the exercise of power ...

1. Mr Byrnes at RS [12] contended that, on application of the approach in ARK16, "it can be accepted that where a decision-maker has elected to provide reasons, a supervising court may take the decision record as expressing the reasoning on the exercise of power".
2. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 (Plaintiff M64/2015) at [25] the plurality stated in respect of reasons in a letter from an administrative-decision maker who did not have a statutory obligation to give reasons:

... the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision ... it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate.

1. I consider that the delegate in the present matter, although not duty-bound to give reasons for their decision, gave, and intended to give, a statement of reasons. Hence, the approach in ARK16 at [10], rather than the statement in Plaintiff M64/2015 at [25], is applicable in the present matter.
2. In the First Judgment at [22] I wrote:

In addition, the extract of Departmental policy concerning the cancellation power in s 116 of the Act tendered at the hearing states in relation to the matters or factors which delegate's should consider:

The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder.

I do not presently recall or understand the source in case law of the proposition that "generally, matters must be weighed in favour of the visa holder, not against the visa holder". Subject to this qualification, in the present matter, there is a clear inconsistency between this proposition and the delegate's decision to give a specified matter "significant weight towards visa cancellation". Again, it is preferable to explore this issue at a final hearing.

1. In DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022 at [20]- [21] Perry J stated:

[20] However, Robertson J in Jabbour considered that in certain circumstances, a misconstruction of Ministerial policy may lead to a finding that the decision is illogical and perverse even where, as here, the decision-maker is not bound to take the policy into account:

1. 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 ... 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" ...

[21] In other words, where a decision-maker purports to apply a policy which has no binding status, a "more radical" misconstruction or misunderstanding of the policy is required in order to establish legal unreasonableness, than in the case of a policy which the decision-maker is bound to take into account ...

1. To similar effect, in Po'oi v Minister for Immigration and Citizenship [2025] FCAFC 192 at [65] Kyrou and Needham JJ stated, with reference to the same paragraph from Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 considered above, that, for legal unreasonableness to arise in this context, the misconstruction or misunderstanding of the non-statutory guideline or policy must be "to such an extent as to amount to a constructive failure to consider it".
2. On reflection, while there is a tension between:

(a) the policy statement that "Generally, matters must be weighed in favour of the visa holder, not against the visa holder" (Policy Statement); and

(b) the fact that the Delegate gave a specified matter "significant weight towards visa cancellation",

I am not persuaded there is an inconsistency which supports a conclusion that the Delegate misapplied the Policy Statement in a manner which constitutes jurisdictional error as discussed above. First, the majority of "matters" in the dot points which follow the Policy Statement are likely to weigh in favour of a visa holder, rather than against. Hence, there is an intelligible reason for use of the word "generally". Second, as partly discussed in Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 710 at [25]- [28], a case to which Mr Byrnes helpfully referred me, the word "generally" must be given work to do. The word "generally" expressly permits the possibility that, while most matters may weigh in favour of the visa holder, some may weigh against the visa holder. Third, again with reference to Campbell-Smith at [27], to exclude or restrict the word "generally" in the Policy Statement may cause the Policy Statement to fetter the discretionary power in s 116(1).

1. I will hear submissions on costs at 2 pm on 15 April 2026.
2. If the applicant wishes to claim costs above the scale amount, or if the respondent wishes to claim costs thrown away by virtue of the applicant's default in January 2026 (see paragraph 31 above), the parties should provide affidavit evidence of their costs, with a copy emailed to my chambers by 4 pm on 14 April 2026.
3. A preliminary observation in relation to costs is as follows. On the one hand, I greatly appreciate the conduct of the applicant's lawyers between 22 and 31 December 2025 in providing legal assistance to the applicant on an urgent basis at that time of year. On the other hand, a comparison between:

(a) the applicant's written and oral submissions at the hearing on 30 December 2025 and the First Judgment; and

(b) the applicant's written and oral submissions at the hearing on 23 March 2026 and this judgment,

indicate that the assistance I received from the applicant's lawyers in identifying the potential errors listed in the First Judgment and the jurisdictional error identified in this judgment was limited. Whether or not this has a bearing on an appropriate costs order can be considered at the hearing on costs.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.