Suleman v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1298

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

1. The applicant, Syed Ahmed Suleman, seeks judicial review of a decision made by the second respondent, the Administrative Review Tribunal (ART) to affirm an earlier decision made by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) on 8 October 2024. The delegate had decided not to revoke the cancellation of Mr Suleman's Class UK Subclass 820 Partner Visa (Visa) pursuant to the discretionary power conferred on the Minister by s 501CA(4) of the Migration Act 1958 (Cth).
2. This Court has jurisdiction to deal with Mr Suleman's application pursuant to ss 476A(1)(b) and 476A(2) of the Migration Act.
3. The hearing of Mr Suleman's application for judicial review was listed to take place before me on 9 September 2025. However, before the commencement of the hearing, the parties, by their legal representatives, provided the Court with a minute of consent orders, which reflected the parties' agreement that the application should be allowed. In accordance with the Court's Practice Note, Consent Orders Involving a Federal Tribunal (GPN-TRIB), the minute also contained, within a 'notes' section at the foot of the document, a statement of the matters said to justify the making of the proposed orders, giving references to the authorities relied upon.
4. Mr Suleman is a 32-year-old citizen of Pakistan. He came to Australia on a student visa when he was 20 years of age. At the relevant time, Mr Suleman was permitted to remain in Australia because he had been granted the Visa.
5. In September 2021, Mr Suleman was sentenced to 4 years and 10 months' imprisonment for three offences of sexual penetration without consent. While Mr Suleman was serving that sentence, a delegate of the Minister decided to cancel the Visa under s 501(3A) of the Migration Act. Pursuant to s 501CA(3)(b), the Minister then gave Mr Suleman notice of the decision to cancel the Visa and invited Mr Suleman to make representations about revoking that decision.
6. Under s 501CA(4) of the Migration Act, the Minister may revoke a decision made under s 501(3A) if:

(1) pursuant to s 501CA(4)(a), the non-citizen makes representations in accordance with an invitation to do so given under s 501CA(3)(b); and

(2) pursuant to s 501CA(4)(b), the Minister is satisfied that:

(a) the person passes the character test (as defined in s 501); or

(b) there is another reason why the original decision to cancel a visa should be revoked.

1. Mr Suleman made representations about the revocation of the decision to cancel the Visa, in response to the Minister's invitation under s 501CA(3)(b). However, after receiving those representations, a delegate of the Minister decided not to revoke the decision to cancel the Visa (Delegate's Decision).
2. Mr Suleman then sought a review of the Delegate's Decision in the Administrative Appeals Tribunal (AAT), under s 500(1)(ba) of the Migration Act. Before the AAT was able to determine Mr Suleman's application, the AAT ceased to operate, and it was then replaced by the ART. By operation of some transitional provisions, the details of which are not relevant for present purposes, Mr Suleman's application to the AAT was then taken to be an application for review by the ART.
3. The ART found that Mr Suleman had made representations as required by s 501CA(4)(a). In that regard, the parties have proceeded on the basis that for the purposes of the review that was conducted by the ART, those representations were set out in a document entitled 'Applicant's Statement of Facts, Issues and Contentions' (SFIC), which was an exhibit before the ART.
4. The ART was not satisfied that Mr Suleman passed the character test, as defined in s 501. Accordingly, the critical issue for the ART to decide was whether there was 'another reason' why the Delegate's Decision should be revoked. In determining that issue, the ART was required to comply with any written directions given by the Minister under s 499: Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 at [7]. In that regard, at the time the ART considered Mr Suleman's application for a review of the Delegate's Decision, the ART was required to comply with Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).
5. In the circumstances, it is unnecessary to provide a detailed summary of the ART's reasons for decision. The ART correctly identified that section 6 of the Direction required it to take into account the considerations identified in sections 8 and 9 of the Direction, where relevant to its decision, and informed by the principles in para 5.2 of the Direction. The ART also referred to section 8 of the Direction, which relevantly provides that in making a decision under s 501CA(4) of the Migration Act, the following are 'primary considerations':

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. Paragraph 8.1 of the Direction further elucidates the matters that decision-makers are required to consider when taking into account the first of those primary considerations. For current purposes, it is only necessary to refer to para 8.1(2), which provides as follows:

(2) Decision-makers should also give consideration to:

...

(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

1. In assessing the risk to the Australian community for the purposes of para 8.1(2)(b), the ART was required to comply with para 8.1.2(2) of the Direction, which provides as follows:

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non-citizen reoffending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. In seeking to comply with para 8.1.2(2)(b) of the Direction, the ART conducted a detailed review of the evidence, and of Mr Suleman's contention that he did not pose a risk to the Australian community. In that regard, the ART gave careful consideration to whether there were adequate protective factors that might prevent Mr Suleman from committing further sexual offences, whether Mr Suleman had demonstrated any remorse for his offending, and whether Mr Suleman had developed any insight into his offending behaviour after undertaking various rehabilitation programs while he was in custody. The ART also had regard to various risk assessments that were referred to in reports that had been prepared while Mr Suleman was in custody. Ultimately, the ART concluded that it was satisfied that there remained 'a real risk that [Mr Suleman] may reoffend if released into the Australian community and future offending of a similar nature would have the potential to cause serious injury to members of the Australian community'. This finding then informed the ART's conclusion that the first primary consideration in para 8(1) of the Direction, namely the protection of the Australian community from criminal or other serious conduct, weighed 'heavily against revocation of the cancellation of [Mr Suleman's] visa'.
2. I have already noted that Mr Suleman's representations for the purposes of s 501CA(4)(a) were set out in the SFIC. That document specifically addressed the primary considerations referred to in section 8 of the Direction, including the consideration in para 8(1). Importantly, the SFIC separately addressed paras 8.1(2)(b) and 8.1.2(2)(b) of the Direction with contentions about the risk to the Australian community should Mr Suleman commit further offences or engage in other serious conduct. In that context, para 4.7.30 of the SFIC contained the following contention:

Direction No.110 requires the Tribunal to give weight to time spent in the community since [the] most recent offense [sic]. The Applicant remained in the community from 6 August 2019 until he was incarcerated on 18 August 2021.

1. It is of no moment, but it should be noted that Mr Suleman was in fact in custody on 6 August 2019, after his arrest, and he was released on bail the following day. Nevertheless, and more importantly, the ART did not avert to the contention at para 4.7.30 of the SFIC, or to the substance of that contention, in its reasons for decision. More specifically, when giving consideration to evidence of rehabilitation achieved by the time of the decision, and giving weight to time spent in the community since Mr Suleman's most recent offence, as required by para 8.1.2(2)(b)(ii) of the Direction, the ART made no reference to Mr Suleman's contention that he had remained in the community from early August 2019 until he was incarcerated on 18 August 2021, a period of over 2 years.
2. In his amended originating application for review of a migration decision, Mr Suleman sought to rely on eight grounds of review. In the circumstances, it is only necessary to refer to ground 1, which is in the following terms:

The Tribunal made a jurisdictional error by failing to consider 'the Applicant remained in the community for two years after the offending and that the Applicant did not commit any offences during the two years'.

Particulars:

(a) The Applicant provided documentary evidence to prove he was in the community on bail for two years prior to his incarceration on 18 August 2021;

(b) The Applicant did not commit any offences during the two years;

(c) The Applicant remained employed and financially supported his family while on bail;

(d) The Tribunal failed to consider the two years the Applicant remained in the community while assessing his likelihood of reoffending; and

(e) Item 8.1.2(2)(b)(ii) of Direction No.110 requires the Tribunal to consider the time the Applicant spent in the community since his most recent offences.

1. The parties agree that the ART's decision is affected by jurisdictional error on a basis that broadly aligns with the terms of ground 1. Specifically, the parties agree that in the context of addressing the issue of the likelihood of Mr Suleman reoffending, the ART failed to consider Mr Suleman's representation at para 4.7.30 of the SFIC, as it was required to do in accordance with para 8.1.2(2)(b)(ii) of the Direction.
2. The Minister also accepts that the ART's error was material to its decision. The Minister accepts that there is a realistic possibility that consideration of the representation at para 4.7.30 of the SFIC could have affected the ART's consideration of the likelihood of Mr Suleman engaging in further criminal or other serious conduct for the purposes of para 8.1.2(2)(b) of the Direction. This could have, in turn, affected both the ART's assessment of the weight to be given to the first primary consideration at para 8(1) of the Direction and the overall weighing exercise the ART was required to undertake, in a manner that was to Mr Suleman's benefit: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321.
3. Notwithstanding the position taken by the parties, this Court must be satisfied that the ART made the alleged jurisdictional error and that it is otherwise appropriate to exercise its jurisdiction to grant the relief sought: HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 at [7] and the cases referred therein.
4. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [22], the majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) said that s 501CA(4) confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is 'another reason' why that decision should be revoked. Their Honours also said that in determining whether a decision-maker is satisfied that there is 'another reason' for revoking a cancellation decision, the decision-maker undertakes an assessment by reference to the case made by the former visa holder by their representations made under s 501CA(4)(a).
5. This does not mean that decision-makers are required to treat every statement within such representations as a mandatory relevant consideration. However, the decision-maker cannot ignore the representations: Plaintiff M1 at [23]. A decision-maker must read, identify, understand and evaluate the representations: Plaintiff M1 at [24], although the requisite level of engagement with the representations will vary, among other things, according to their length, clarity and degree of relevance: Plaintiff M1 at [25].
6. The majority in Plaintiff M1 also said the following at [27]:

if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(footnotes omitted)

1. I am satisfied that the ART fell into jurisdictional error.
2. It is well-settled that in considering a decision-maker's reasons, the court ought not construe them minutely and finely with an eye keenly attuned to the perception of error. However, as the Full Court said in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [49]:

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].

1. In my view, it is plain that the ART overlooked Mr Suleman's representation at para 4.7.30 of the SFIC that he had remained in the community from early August 2019 until he was incarcerated on 18 August 2021, during which time he did not commit any further offences. This is because there is no reference to the substance of that representation to be found anywhere in the ART's reasons for decision, even though the representation itself correctly asserted that the Direction (para 8.1.2(2)(b)(ii)) required the ART to give weight to time spent by Mr Suleman in the community since his most recent offence.
2. It is unnecessary to decide whether the consideration in para 8.1.2(2)(b)(ii) of the Direction is a mandatory relevant consideration, particularly in circumstances in which the Court has not received any submissions about that issue. It is enough to observe that by overlooking the contention at para 4.7.30 of the SFIC, the ART clearly failed to identify and understand, and therefore evaluate, an articulated and substantial representation which expressly sought to address para 8.1.2(2)(b)(ii).
3. As para 8.1.2(2)(b)(ii) of the Direction required that the ART give weight to recent offence‑free time spent in the community, it is obvious that there is a realistic possibility that had consideration been given to Mr Suleman's representation that he had been in the community for a period of just over two years since his last offence, it could have affected the ART's assessment of the likelihood of Mr Suleman engaging in further criminal or other serious conduct for the purposes of para 8.1.2(2)(b) of the Direction. That assessment could well have, in turn, affected both the ART's assessment of the weight to be given to the first primary consideration at para 8(1) of the Direction and the overall weighing exercise the ART was required to undertake, in a manner that was to Mr Suleman's benefit.
4. For these reasons, I am of the view that effect should be given to the parties agreed position and that orders should be made in terms that reflect the substance of the consent orders proposed by the parties.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.