FEDERAL COURT OF AUSTRALIA
XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115 Appeal from: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14
File number: NSD 206 of 2025 Judgment of: WHEELAHAN, STEWART AND NEEDHAM JJ
Date of judgment: 19 September 2025
The appellant, a Sri Lankan citizen holding a Safe Haven Enterprise Visa (SHEV), had his visa cancelled by the Minister under s 501BA(2) of the Migration Act 1958 (Cth) following a conviction for a child sexual offence. Although the Administrative Appeals Tribunal had earlier revoked the cancellation, the Minister personally set aside that decision, citing national interest grounds.
The appellant challenged the Minister’s decision, arguing it was legally unreasonable, illogical, or irrational—particularly because he could not be removed from Australia due to non-refoulement/extradition obligations and would remain in the community.
The Full Court (Wheelahan, Stewart and Needham JJ) dismissed the appeal, holding:
- The Minister’s satisfaction that cancellation was in the national interest was a valid jurisdictional fact, even though removal was not practicable.
- The Minister provided intelligible justification: the seriousness of the offence, risk of reoffending (even if low), and community expectations that non-citizens who commit serious crimes should not hold visas.
- The Minister acknowledged the appellant would remain in the community and would likely be issued a Bridging Visa R (BVR) with conditions tailored to mitigate risk (e.g., curfews, monitoring, restrictions on contact with minors).
- The Court rejected the argument that cancellation lacked protective effect merely because removal was not imminent. The cancellation rendered the appellant liable to removal and subject to stricter visa conditions.
- The Minister’s reasoning did not offend logic or legal standards for administrative decision-making. The threshold for establishing jurisdictional error was not met.
The Court also distinguished the High Court’s recent decision in Plaintiff S22/2025, finding it did not undermine the Minister’s reasoning in this case.
Core Legal Principles
- Ministerial Power under s 501BA(2) of the Migration Act
- This provision allows the Minister to personally set aside a decision by the Administrative Appeals Tribunal to revoke a visa cancellation.
- Two jurisdictional facts must be satisfied:
- The person does not pass the character test (e.g. conviction for child sexual offences under s 501(6)(e)).
- Cancellation is in the national interest.
- 2. Nature of the “National Interest”
The “national interest” is a broad and evaluative concept, largely political in nature.
It includes considerations such as:
- Protection of the Australian community.
- Community expectations regarding non-citizens who commit serious crimes.
- The symbolic and legal consequences of visa cancellation.
The Minister’s satisfaction must be formed reasonably and in accordance with legal standards, but courts give wide latitude to the Minister’s evaluative judgment.
- Legal Unreasonableness and Jurisdictional Error
- A decision may be challenged if it is legally unreasonable, illogical, or irrational.
- However, the threshold is high: the reasoning must “completely offend logical thinking” or lack any intelligible justification.
- The Court found the Minister’s reasoning—emphasising community protection and expectations—even in the absence of actual removal, was intelligible and lawful.
- Impact of Non-Refoulement/Extradition Obligations
- Due to protection findings, the appellant could not be removed to Sri Lanka.
- The Minister acknowledged this, but the Court held that cancellation still served a lawful purpose: rendering the person liable to removal and subject to stricter visa conditions (e.g. Bridging Visa R with curfews, monitoring, and restrictions).
- Distinction from Plaintiff S22/2025
- The Court distinguished this case from Plaintiff S22, where the Minister’s reasoning lacked clarity on how cancellation protected the community.
In XKTK, the Minister clearly considered giving a visa with safety conditions, which made the decision understandable.