Federal Court. The Minister found that cancellation under s 501BA(2) was in the national interest, because of the risk to the community if the Applicant remained in Australia, and the community's expectation that the government would not allow persons convicted of the offences involved to remain in Australia. Was that finding irrational, as the Applicant was NZYQ affected and would thus remain in Australia anyway?
Following a decision of the Tribunal to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the mandatory cancellation of the Applicant's protection visa, he became part of the NZYQ-affected cohort. The reason is that he had been found to be owed protection and there was no real prospect that it would be practicable to remove him from Australia in the reasonably foreseeable future.
After acknowledging that that was the case, the Minister nevertheless personally set aside the Tribunal's decision, and cancelled the visa, under s 501BA(2) of the Act in the national interest.
One of the reasons for finding that cancellation was in the national interest was that the protection of the Australian community from future harm, as the Minister found:
... I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.
Another of those reasons was that "the Australian community does not generally expect a person who has been convicted of these offences to be able to continue to hold a visa and remain in the Australian community".
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Although the Minister did not make a finding that cancellation of the Applicant’s visa would in fact protect the Australian community, did he proceeded on the assumption that the effect of any decision to cancel the visa would be that he no longer posed a threat to the community and that cancellation would meet the community expectations?
Question 2: If the answer to Question 1 is 'yes', does the decision lack an intelligible justification, in that it is "impossible to discern why the Minister thought that cancelling the applicant’s visa would have any impact on the protection of the community when ... NZYQ meant that the applicant would remain at large even if his visa was cancelled"?
Question 3: Does the decision have an intelligible justification, in that there were alternate ways the Minister might have arrived at the decision in a rational fashion? In other words, can the Court substitute its own justification for the decision under review, so long as the decision was open?
Question 4: Was the Minister bound to take into account the legal consequences of the decision under s 501BA(2)?
Question 5: If the answer to Question 4 is yes', was a legal consequence of the cancellation that the Applicant would be granted a BVR?
Question 6: If the decision was vitiated with jurisdictional error, was it necessary for the Applicant to seek an order (such as Mandamus) in addition to certiorari?
The FCA answered those questions as follows: