Younes v Minister for Immigration and Multicultural Affairs [2025] FCA 236

(a) the Minister was acting on the incorrect factual basis that the applicant was in immigration detention at the time of the Minister's Decision (Ground 1);

(b) had the Minister not erred, as contended in Ground 1, greater weight could have been given to the best interests of the applicant's minor children in his favour (Ground 2);

(c) the Minister explicitly excluded consideration as to the applicant's minor children in assessing the applicant's ties to Australia (Ground 3); and

(d) the Minister concluded that he had regard to the applicant's "current circumstances", which finding lacked a rational foundation, as the Minister was not aware of the applicant's then current circumstances (Ground 4).

1. For the reasons that follow, the application should be dismissed.

THE NATURE OF THE POWER AND THE MINISTER'S DECISION

1. Section 501BA of the Migration Act is an exceptional power which may only be exercised by the Minister personally: s 501BA(4). The section provides as follows:

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

(1) This section applies if:

(a) a delegate of the Minister; or

(b) the AAT;

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.

(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

(ii) paragraph 501(6)(e); and

(b) the Minister is satisfied that the cancellation is in the national interest.

1. The conferral of this power expressly excludes any obligation to afford the person affected natural justice (s 501BA(3)), but that does not mean the Minister cannot give a person an opportunity to be heard: see Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 at [23].
2. The Minister's assessment and evaluation of the "national interest" is largely a "political question": 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). However, this "...does not mean that the power is unconstrained": LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [40] (Charlesworth J) and the cases there cited.
3. The Minister's Decision records that, although he was not required to afford the applicant procedural fairness, the section did not prohibit him from doing so: at [7]-[8]. The Minister stated that he had chosen not to do so because he had given consideration to the information previously provided by the applicant to the Tribunal: at [9]-[10].
4. The Minister was satisfied that it was in the national interest to cancel the applicant's visa having regard to:

(a) the fact that the applicant's offending was "particularly serious" (at [23]) and "very serious" (at [89]) and that there was a "low to moderate" risk that the applicant would reoffend which was "unacceptable" (at [39]); and

(b) the Australian Government's views about the expectation of the Australian community, particularly in relation to sexual offences against women, being that the community would expect that non-citizens who disobey the law and create an acceptable risk of harm should not be allowed to enter and remain in Australia (at [42]-[46]).

1. Having decided that his power under section 501BA(2) of the Migration Act was enlivened, the Minister then considered a number of discretionary factors, as follows:

(a) the best interests of the applicant's minor children: at [62];

(b) the applicant's ties to Australia: at [72];

(c) the legal consequences of the decision to cancel the applicant's visa: at [74];

(d) the extent of the impediments the applicant would face if he was removed to Lebanon: at [82];

(e) the impact on the victim of the applicant's offending [83]; and

(f) the impact on Australian business interests: at [86].

1. Having weighed these discretionary considerations, the Minister concluded as follows at [89]-[90]:

I have weighed up the above countervailing factors against the national interest considerations. In doing so, I have considered the very serious nature of [the applicant's] conduct involving sexual touching of a female person previously unknown to him, the fact that any material risk of such conduct reoccurring is unacceptable, and my finding that there is a low to moderate (and non-negligible) risk that he would reoffend. In this respect, in considering the national interest, I have had particular regard to [the applicant's] comments which indicated that his intentions were "not bad" (see above at paragraph [33]) and the sentencing Judge's remarks to the effect that [the applicant] believed his intentions to be "romantic". I have also taken into consideration the expectation of the Australian community that non-citizen[s] must obey the Australian laws while in Australia, and that in cases such as this, the Australian community would expect a non-citizen not to continue to hold a visa due to the concerns arising from the very serious nature of his or her offending.

In this case, I consider that the national interest in protecting the Australian community is a key consideration. I find that the national interest considerations in this case outweighs the considerations against cancellation.

1. Grounds 1 and 2 may be dealt with together as they are related.
2. By Ground 1, the applicant contended that the Minister's Decision was legally unreasonable, illogical and irrational because the Minister assessed the best interests of the applicant's minor children on an incorrect factual basis, being that the applicant was in immigration detention when that was not the correct factual position at the time of the Minister's Decision. By Ground 2, the applicant contended that if the Minister had not made the error in Ground 1, then greater weight could have been given to the best interests of the applicant's minor children in his favour.
3. Grounds 1 and 2 focussed upon the Minister's Decision at [58]. There, the Minister stated:

I accept that [the applicant] has a close and loving relationship with his children, and that he is likely to play a positive role in the lives of his children if he was released into the community. However, I find [the applicant's] ability to play a positive role in the lives of his children to date has been somewhat limited by his term of imprisonment. Further, I note that there [is] no evidence before me to suggest that [the applicant] would not be able to maintain contact with his children by electronic means if removed from Australia. Nevertheless, I accept it is in the best interests of each of [the applicant's] two children for him to remain in Australia.

(Emphasis added.)

1. The applicant submitted that the emphasised words "if he was released into the community" indicated that the Minister was acting on an incorrect factual premise. This is because it was common ground that, as a matter of fact, at the time of the Minister's Decision the applicant had already been released into the community. The applicant submitted that the Minister's Decision lacked a "probative basis and was otherwise irrational".
2. In response to the applicant's contentions, the Minister submitted that there were other parts of the Minister's Decision where it is clear that he knew, and proceeded on the basis, that the applicant's visa had been reinstated and, therefore, the applicant had been released from detention. The other parts of the Minister's Decision included the following:

(a) at [6] the Minister observed that, as a result of the Tribunal's decision, the applicant's visa had been reinstated, which the Minister submitted necessarily meant that he was aware that the applicant had been released from detention;

(b) at [35] the Minister assessed the applicant's risk of reoffending by giving consideration to, amongst other things, the "...supports available to him in the community", which the Minister submitted again indicated that he was aware that the applicant had been released from detention; and

(c) at [47] the Minister turned to consider whether he was satisfied that it was in "the national interest" to cancel the applicant's visa, which the Minister submitted was again consistent with him being aware that the applicant had been released from detention.

1. The Minister submitted that the position here was analogous to that considered by Horan J in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876. There, in the context of considering the reasons of the Tribunal, his Honour stated at [40]:

On a fair reading of the Tribunal's reasons as a whole, the Tribunal was clearly cognisant of the fact that the applicant was in the community at the time of its decision. At the commencement of its reasons, the Tribunal expressly acknowledged that the applicant had been "in the community" since January 2023, notwithstanding the cancellation of visa, as a result of the decision in Pearson: Reasons at [5]. The Tribunal made numerous other references to the fact that the applicant had been released, was not detained "at present" and had not been detained since January 2023, and was "currently living in the community": Reasons at [194], [199], [201], [281]. In the context of those express references, it is not open to treat the finding at para [244] of the Reasons as having been made in ignorance of the applicant's situation. The preferable interpretation, if not the only plausible interpretation, of that paragraph of the Reasons is that the Tribunal was referring to the likelihood of the applicant reoffending if he were permitted to remain in the community as a lawful non-citizen. It is not plausible that the Tribunal overlooked or "forgot" that the applicant had been in the community when it addressed Primary Consideration 1.

1. As will be evident from the above passage, the decision in RCLN was one where the Tribunal had elsewhere in its reasons expressly recognised that the applicant had been released into the community and was no longer in detention. By contrast, in the present case, the Minister's Decision does not expressly state that the Minister was aware that the applicant had been released into the community and was no longer in detention. The Minister's Decision does, however, record that the Minister was well aware that the applicant's visa had been reinstated. Although not expressly stated, I am satisfied that it is to be inferred from the totality of the Minister's Decision that the Minister was aware that the applicant had been released into the community following the Tribunal's revocation of the Cancellation Decision: see Minister's Decision at [6].
2. The Minister made it plain that he had given consideration to the information that the applicant had provided "in relation to the original request for revocation and the evidence before the AAT in revoking the decision to cancel [the applicant's] visa": Minister's Decision at [10]. The Minister also made it plain that he was proceeding to make a decision without giving the applicant an opportunity to "advance reasons why an adverse decision should not now be made": Minister's Decision at [9] (emphasis added). Accordingly, the Minister was making it plain that he was making his personal decision under s 501BA of the Migration Act only upon the state of the information as was before him.
3. The Minister was satisfied that it was in the "national interest" to cancel the applicant's visa: at [47]-[49]. The Minister's state of satisfaction in this regard was sufficient for the Minister to have exercised the power under s 501BA(2) of the Migration Act to set aside the Tribunal's decision and to cancel the applicant's visa. The Minister was not obliged to consider any other matters but decided to do so as a matter of discretion: at [50]-[51]. To the extent that the Minister considered these other matters, the totality of the Minister's reasons disclose (as I have stated above) that he was only doing so on the basis of the information that was then available to him.
4. In relation to the best interests of the applicant's children, the Minister (at [54]) recognised and accepted the "very significant role" that the applicant played in their lives. The Minister further recognised and accepted (at [55]) that, notwithstanding the fact that the children were being cared for by their mother, the applicant had "regular contact" with the children and had a "close relationship" with them. The Minister also had regard to the evidence from the children's mother that the applicant was "a great" and "excellent" father and that the children would suffer if he was removed from Australia: at [56]. The Minister further noted the mother's evidence that the applicant had been flexible with her to ensure that he was able to spend as much time as possible with the children: at [56]. The Minister then took into account the evidence from the applicant's brother to a similar effect including evidence that he had taken the children to visit the applicant in immigration detention: at [57].
5. It is within the context of the examination of this evidence that the Minister concluded (at [58]) that the applicant was likely to play a positive role in the lives of his children "if he was released into the community" and ultimately concluded (at [62] and [88]) that this was a matter that "weighed heavily against cancellation". The Minister's assessment as to the likely positive role the applicant would have in the lives of his children was necessarily one which was expressed from the viewpoint of it being a prospective outcome in the event that the applicant was released into the community. It was necessarily prospective because the Minister was assessing this discretionary consideration based on the only information that the Minister decided to consider, being the information that was before the Tribunal. The Minister was not seeking to consider the role the applicant had in fact played in the lives of his children since the applicant's release from detention, and the Minister was not purporting to do so. The Minister was neither bound to obtain nor consider any further information from the applicant in making his assessment. In this sense, it was open to the Minister to consider any discretionary matters that he considered to be relevant, and the terms upon which he would consider them. That the Minister elected to make his decision in this way may be seen to result in unfairness. However, this does not necessarily lead to the conclusion that the decision was legally unreasonable. As Charlesworth J observed in Kirk v Minister for Immigration and Multicultural Affairs [2025] FCA 150 at [13]:

[Section 501BA(2)] is a power that can be lawfully exercised without affording the affected person an opportunity to be heard irrespective of whether unfairness in the ordinary sense may result. By precluding an obligation to afford an affected person a right to be heard, Parliament may be taken to contemplate that the Minister's decision may lawfully be made in the absence of factually relevant information which the affected person might otherwise be in a position to provide, including information that is more up-to-date than that in the Minister's possession. If it be within the scope of a power to proceed in an unfair fashion, it must follow that the resulting decision cannot be affected by legal unreasonableness merely by virtue of that unfairness. Expressed another way, the statutory intent to be discerned from s 501AB(3) is that the power in s 501AB(2) can lawfully be exercised in a manner that is procedurally unfair. Unfairness of that kind is within the scope of the power.

(Emphasis added.)

1. In the present case, the Minister chose to narrowly consider the matters that he did. It was open for the Minister to approach the exercise of power in this manner. Given this, I am not satisfied that the Minister's decision was legally unreasonable, illogical or irrational merely by virtue of the approach adopted by the Minister. More is required to establish legal unreasonableness. In this regard, in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21, the Full Court (Allsop CJ, Besanko and O'Callaghan JJ) stated that at [34]-[35]:

The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. In Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277, the Full Court (Markovic, Meagher and Kennett JJ) referred to Djokovic and observed at [50]-[51] that:

Referring to a number of earlier cases, the Court observed at [33] that "the characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made". At [35], the Court framed the ultimate question as:

" ... whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious."

(Citations omitted and emphasis added.)

The phrase "irrational, illogical or not based on findings or inferences supported by logical grounds" can be traced back to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38] (Gummow and Hayne JJ), which the Court cited. The framing of the ultimate issue in terms of whether the state of satisfaction could have been reached logically echoes the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130]-[131], [135], which this Court in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 regarded as constituting the majority reasoning in that case.

1. In the present case, the state of satisfaction that the Minister was required to reach was as to the matters specified in s 501BA(2)(a) and (b). The Minister reached that state of satisfaction. The Minister also decided to consider other matters, including the best interests of minor children. The Minister decided to do so only on the basis of the extent of the materials that were available to the Tribunal. It was open for the Minister to take this course in the sense that there was no specific obligation upon him to take a different course. The Minister relied upon those materials to come to conclusions as to what was in the best interests of the minor children in the event that (as had come to already pass) the applicant was released into the community. The Minister was not satisfied that the national interest was outweighed by this matter or the other discretionary matters the Minister had taken into account. I am not satisfied that this overall approach to the state of satisfaction that the Minister reached was legally unreasonable, illogical or irrational.
2. For these reasons, I reject Ground 1. As Ground 2 proceeded on the premise that Ground 1 was established, I also reject Ground 2.

1. By Ground 3, the applicant contended that the Minister's Decision was legally unreasonable because the Minister did not give consideration to the applicant's minor children when the Minister assessed the applicant's ties to Australia.
2. I do not accept the applicant's contentions. They do not fairly or accurately reflect the Minister's Decision.
3. As I have already observed, the Minister's power under s 501BA(2) is an exceptional one. Subject to satisfaction of the conditions specified in s 501BA(2)(a) and (b) (the latter of which involves essentially a political decision as to the national interest), the power is largely unfettered, subject to principles of legality.
4. Here, the Minister concluded that the cancellation of the applicant's visa was in the national interest. The Minister was not bound to consider any further matters, but the Minister nevertheless decided to do so. The Minister did so because he considered that the exercise of his power was discretionary. The Minister set out the matters that he considered were relevant to the exercise of his discretion. One such matter was the best interests of the applicant's children. In respect of this matter, the Minister concluded at [62] that:

I find that it is in the best interests of each of [the applicant's] two biological children and two nephews that I do not cancel [his visa]. I have given this heavy weight against cancellation.

1. The Minister then turned to consider the applicant's ties to Australia and concluded at [72] that:

I have considered the strength, nature and duration of [the applicant's] ties to Australia and find that they weigh moderately against cancellation of the visa in this case. I give moderate weight to this consideration because I find that [the applicant's] ties to Australia through immediate family members (other than his children, whose interests have been considered above) who have the right to permanently reside in Australia is limited, and the somewhat limited nature of his employment history and other ties to the community.

(Emphasis added.)

1. The Minister made it plain that he had already considered the best interests of the applicant's children separately. The Minister was not obliged to consider any of these matters and, to the extent that he did so, he was not required to give double weight to overlapping considerations: see eg Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] (Perram J) cited with approval, inter alia, in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97; (2021) 285 FCR 1 (Collier, Markovic and Anastassiou JJ) and XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53] (Bromberg, Stewart and Goodman JJ).
2. The applicant has not established that the Minister's Decision was legally unreasonable in this respect. Accordingly, I reject Ground 3.

1. By Ground 4, the applicant contended that the Minister's Decision was legally unreasonable in so far as the Minister stated that he had regard to the applicant's "current circumstances". It was submitted that this finding lacked a rational foundation because the Minister was not, in fact, aware of the applicant's then current circumstances.
2. The applicant's complaint here related to that part of the Minister's Decision that dealt with the risk of the applicant reoffending. The Minister stated at [35] that:

As noted in these reasons, I have also given consideration to [the applicant's] current circumstances, including his completion of rehabilitation courses and supports available to him in the community.

1. The applicant submitted that this statement lacked a rational foundation because it implied that the Minister had a complete and accurate understanding of the applicant's situation as at the time of the Minister's Decision. It was submitted that this was not accurate because the Minister only took into account the matters that were before the Tribunal. It was submitted that, if the Minister was to have regard to the applicant's current circumstances, then, procedural fairness required the Minister to provide the applicant with a meaningful opportunity to provide updated and detailed information about the progress of his rehabilitation and access to community supports.
2. In response to the applicant's contentions, the Minister submitted that the reference in the Minister's Decision at [35] to the applicant's "current circumstances" was intended to distinguish between the applicant's circumstances as at the time he was sentenced in June 2022 and those that prevailed in the proceedings before the Tribunal which was the information available at the time of the Minister's decision in June 2024. It was submitted that this information was the most "current" material in the Minister's possession and the Minister was not obliged to obtain the most up to date information before making his decision: see eg, by way of analogy, Candemir v Minister for Home Affairs [2019] FCAFC 33; (2019) 268 FCR 1 at [25]- [26] (Collier, Robertson and Thawley JJ); Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1113 at [109] (Raper J), applying Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758 at [55] and [57] (Bromberg J), as upheld in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 156 (Derrington, Feutrill and Hespe JJ).
3. The Minister's submissions should be accepted. The totality of the Minister's reasons made it plain the extent of the information upon which the Minister relied to make his decision. The Minister's reference to "current circumstances" in the Minister's Decision at [35] was a reference to the information of the then current circumstances as known to the Minister. The Minister was not obliged to afford the applicant with procedural fairness and, accordingly, was not required to obtain up to date information from the applicant. In the context of the statutory scheme and the nature of the power being exercised by the Minister under s 501BA, it was not legally unreasonable, irrational or illogical for the Minister to have regard to the applicant's "current circumstances" as the Minister knew them to be.
4. Accordingly, Ground 4 fails.

1. The amended originating application should be dismissed and the applicant should pay the Minister's costs as agreed or assessed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.