Federal Court puts limits on ministers’ personal powers to reverse tribunal decisions

As a result, the Minister for Immigration and Multicultural Affairs and other ministers with powers to make decisions under the Migration Act have been setting aside decisions of the (now) Administrative Review Tribunal at numbers probably never seen before.

A document (a submission by the Department of Home Affairs to the Minister for Immigration and Multicultural Affairs) disclosed under freedom of information legislation, and signed by the minister on 22 October 2024, reveals at [7]-[8] that on 1 August 2024 he requested that the Department refer “all” character cases lost by the federal government at the tribunal (then the AAT) since 21 June 2024 to him for consideration of exercising his personal powers to set aside Tribunal decisions.

The unprecedented volume of tribunal decisions being set aside has raised questions among legal practitioners about whether those personal powers have been overused. That is because, among other things, the then minister for immigration and border protection said in the second reading speech on the bill which introduced one of such personal powers (emphasis added):

The measures proposed will ensure that the government can move quickly to take action against non-citizens who pose a risk to the Australian community by delivering consistency in personal ministerial decision-making powers across both the character and general visa cancellation powers.

Another reason why practitioners have raised questions about overuse of those powers is that the explanatory memorandum to that bill said (emphasis added):

VIEW ALL

The intention is that this is a personal power of the minister to ensure that, despite a decision of a delegate or tribunal to revoke a visa cancellation, the minister retains the ability in exceptional cases, where it is in the national interest, to remove a person who does not pass the character test from the community.

Turning now to the decision-making process for a non-citizen with a criminal history, it can look as follows:

1. Ministerial delegates refuse to grant someone a visa, or cancel someone’s visa, or refuse to revoke a visa cancellation, on character grounds.
2. The tribunal sets aside some of those decisions.
3. Ministers retain a residual, personal power to set aside those tribunal decisions, thereby reinstating the original decision of the delegate.

That residual power can only be exercised if it is in the “national interest” to do so, which is essentially a political question. And there is little limitation as to what may be in the national interest.

However, despite being a political question, the power is not without limits. For instance, the power must be exercised legally reasonably, and on a correct understanding of the law.

There are several such “national interest” powers in the act available to ministers to set aside certain tribunal decisions, including the power under section 501BA.

Speaking of section 501BA, the decision of the Federal Court in XMBQ v Minister for Immigration and Multicultural Affairs [2025], handed down in late May 2025, illustrates how the power in that section normally comes to be exercised:

1. A non-citizen, XMBQ (a pseudonym), who held a refugee visa, failed the “character test” set out in section 501(6) of the act, due to criminal convictions;
2. A ministerial delegate cancelled XMBQ’s visa on character grounds, as mandated by section 501(3A) of the act.
3. XMBQ made representations under section 501CA(4)(a) of the act, seeking revocation of the visa cancellation.
4. Under section 501CA(4)(b), a delegate refused to revoke the visa cancellation, meaning that the visa remained cancelled.
5. XMBQ sought (merits) review of the non-revocation decision with the tribunal (the AAT at the time).
6. The tribunal set aside the delegate’s decision and revoked the visa cancellation, meaning that the visa was restored.
7. XMBQ was convicted of further offences.
8. Under section 501BA, the Minister for Immigration and Multicultural Affairs, acting personally, set aside the tribunal’s decision, and cancelled the visa.

However, it was not until about three years and two months after the tribunal’s decision that the minister made the decision described in item eight, above. On judicial review, XMBQ argued to the Federal Court that the minister’s decision was invalid, as it was not made within a reasonable time after the tribunal’s decision. In the words of Justice Horan at [127] of the judgment: “… At the risk of being unduly colloquial, the argument advanced by an applicant in such circumstances in relation to the power conferred by s 501BA(2) is along the lines of ‘use it or lose it’.”

As such, the questions to the Federal Court in XMBQ were:

1. Was the minister’s power in section 501BA subject to an implied temporal limitation requiring it to be exercised within a reasonable time after the tribunal’s decision? The answer was “yes”.
2. If so, was the minister’s power in section 501BA exercised within a reasonable time after the tribunal’s decision? The answer was “no”.

As a result, Justice Horan quashed the minister’s decision.

That was not the first time where a single judge of the Federal Court ruled that the power in section 501BA is subject to an implied temporal limitation requiring it to be exercised within a reasonable time after the tribunal’s decision. In Eswaran v Minister for Immigration, Citizenship and Multicultural Affairs [2025], handed down only a few days before XMBQ, Justice Longbottom ruled to the same effect. The difficulty for Mr Eswaran was that the court found, in the circumstances of his case, that the minister did make the decision under section 501BA within a reasonable time after the tribunal’s decision.

As such, XMBQ appears to have been the first case where a non-citizen successfully argued that a personal exercise of ministerial power to set aside a tribunal decision under the “national interest” was invalid by reason of delay.

Also, XMBQ and Eswaran establish an important precedent, especially as: personal migration decisions of a minister under the “national interest” are not reviewable by the tribunal; as such, non-citizens can only have those decisions reviewed in court (judicial review); and there are limited grounds on which a judicial review application can succeed, with those two cases adding a new ground.

In the words of Justice Horan in XMBQ at [131], the power in section 501BA “is not designed to allow the minister to ‘wait and see’ whether the person’s visa should be cancelled in the light of subsequent events”.

Sergio Zanotti Stagliorio is a barrister and lecturer in migration law.