Federal Court (Full Court). Was it legally unreasonable, irrational or illogical for the Minister to conclude that the risk that the appellant posed to the community and community expectations weighed in favour of cancellation of his visa when the appellant would remain in the community anyway on a BVR because of the effect of NZYQ?
Justice Wheelahan summarised the background as follows:
1 This is an appeal from orders of a judge of this Court dismissing the appellant’s claim that a decision of the Minister acting personally to set aside a decision of the Administrative Appeals Tribunal and to cancel the appellant’s visa was affected by jurisdictional error: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (J).
2 The appellant is a citizen of Sri Lanka who was granted a Class XE Subclass 790 Safe Haven Enterprise Visa in June 2022, and he is the subject of a protection finding in relation to Sri Lanka.
3 In January 2023, the appellant was convicted of a sexually based offence involving a child. As a result, on 3 February 2023 the appellant’s protection visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the ground that the delegate was satisfied that the appellant did not pass the character test: see s 501(6)(e) of the Act, which relates to sexually based offences against a child.
4 On 5 July 2023, a delegate of the Minister declined to revoke the cancellation of the appellant’s visa under s 501CA(4). That decision was set aside on 15 September 2023 on review by the Administrative Appeals Tribunal and in its place the Tribunal revoked the cancellation of the appellant’s visa.
5 On 8 November 2023, the High Court published orders, and then on 28 November 2023 its reasons, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ). The effect of NZYQ is that detention of an unlawful non-citizen is authorised by ss 189(1) and 196(1) of the Act only if there is a real prospect of removal becoming practicable in the reasonably foreseeable future.
6 On 14 June 2024, the Minister set aside the decision of the Tribunal pursuant to s 501BA(2) of the Act and cancelled the appellant’s visa. Section 501BA(2) relevantly provided that the Minister acting personally may set aside a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) to revoke a decision under s 501(3A) to cancel a visa that has been granted to a person. Two jurisdictional facts enlivened the power. In the case of the appellant, the first was satisfaction by the Minister that the appellant did not pass the character test. The Minister’s satisfaction in this regard is not in issue. The second jurisdictional fact was the Minister’s satisfaction that the cancellation of the appellant’s visa was in the national interest.
7 At the time of the Minister’s decision, and given the protection finding in relation to Sri Lanka, there was no real prospect of removing the appellant from Australia to Sri Lanka in the reasonably foreseeable future: see s 197C. And because there was no real prospect of removal of the appellant to any other place becoming practicable in the reasonably foreseeable future, detention of the appellant was not authorised by the Act: NZYQ at [44]–[45].
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can cancellation of a person’s visa as a necessary step towards removal "only lawfully occur when removal is reasonably practicable, either at the time of cancellation or in the reasonably foreseeable future"?
Question 2: Can it be said that, although administrative reasons are not to be read with an eye keenly attuned to the perception of error, "the latitude given to administrative decision-makers when considering their reasons is not a refuge from which established error may be ignored, especially where the error is the absence of reasoning on a critical issue that is the subject of challenge"?
Question 3: Is it wrong to say that "only detention or actual removal of the appellant was reasonably capable of being regarded by the Minister, within the terms of his reasons, as a measure of protection of the Australian community", with the result that the Minister's decision was not legally unreasonable?
Question 4: Was the Minister's decision not legally unreasonable, because "there was no illogicality or “inconsistency” in cancelling a visa that granted the non-citizen the right to remain in Australia in circumstances where the non-citizen will still remain in Australia but on a visa that is designed to facilitate their removal when practicable"?
The FCAFC answered those questions as follows: