CMP25 v Minister for Immigration and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 24 December 2025
• Neutral Citation: [2025] FCAFC 199
• Date: 24 December 2025
• Court: Full Federal Court (Australia)

Federal Court of Australia

CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 199

ORDERS

NSD 932 of 2025
BETWEEN:	CMP25 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

order made by:	PERRY, CHEESEMAN AND SHARIFF JJ
DATE OF ORDER:	24 December 2025

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. INTRODUCTION

1 This is an appeal from the orders made by the primary judge dismissing an application for judicial review of a decision made by the respondent (the Minister) under s 501BA of the Migration Act 1958 (Cth) (the Act): CMP25 v Minister for Immigration and Multicultural Affairs [2025] FCA 480 (the primary judgment or PJ).

2 By that decision (the Decision or MD), the Minister set aside a decision of the Administrative Appeals Tribunal (the Tribunal) which had reinstated the appellant’s visa after it had been subject to mandatory cancellation by a delegate of the Minister.

3 The issues that arise in this appeal are whether:

(a) the primary judge ought to have held that the Minister’s reasoning in affording no weight to the legal consequences of the Decision was unreasonable, illogical or irrational: Ground 1A of the Amended Notice of Appeal;

(b) the primary judge denied procedural fairness to the appellant by failing to address his submissions and evidence concerning his vulnerability to harm in immigration detention and the Minister’s failure consequently to give weight to the impact of detention upon him: Ground 1B of the Amended Notice of Appeal;

(c) the primary judge erred in finding that the Minister had not “deferred” consideration of the appellant's “protection claims”, and in not finding that such a deferral was unreasonable, illogical or irrational because s 48A of the Act prevented him from making a new protection visa application: Ground 2 of the Amended Notice of Appeal; and

(d) the primary judge erred in failing to find jurisdictional error in the Minister’s approach to the lack of more recent risk assessments of the appellant, and finding that that approach was not unreasonable, illogical or irrational: Ground 3 of the Amended Notice of Appeal.

4 For the reasons set out below, the appeal should be dismissed with costs.

2. BACKGROUND

5 The appellant is a Portuguese citizen. He was granted a Transitional (Permanent) (Class BF) visa on 28 April 1971 and arrived in Australia in 1975, at the age of 9. He has not left Australia since.

6 Whilst in Australia, the appellant was convicted of the following offences:

(a) in 2007, the appellant was convicted of sexual intercourse without consent and sentenced to six years’ imprisonment;

(b) on 20 April 2018, the appellant was convicted of “Remain in building/land w/I commit indictable offence” and “common assault” and sentenced to six months' imprisonment;

(c) on 25 June 2018, the appellant was convicted of "cause or set fire to the property of another or Crown-2" and sentenced to twelve months' imprisonment; and

(d) on 2 July 2018, the appellant was convicted of "larceny-T2, goods in personal custody suspected being stolen (not m/v) and possess prohibited drug" and received a two-year good behaviour bond.

7 On 15 August 2018, the appellant's visa was cancelled under s 501(3A) of the Act.

8 On 4 April 2019, the appellant applied for a Protection (subclass 866) visa. On 18 July 2019, a delegate refused the visa application. The Tribunal purported to affirm that refusal on 28 October 2019, but its decision was quashed because it was affected by jurisdictional error.

9 On 15 August 2022, a delegate refused to revoke the cancellation of the appellant's visa. The appellant applied for review in the Tribunal. On 8 November 2022, the Tribunal purported to set aside the delegate's decision. The Tribunal's decision was quashed by the Full Federal Court, and the matter was remitted to the Tribunal for reconsideration. On 13 November 2023, the Tribunal (again) set aside the delegate's decision and revoked the cancellation of the appellant's visa.

10 At that time, the appellant's application for review of the protection visa refusal remained pending before the Tribunal. In May 2024, six months after his visa was restored, the appellant withdrew that application; as a result, the Tribunal determined that it did not have jurisdiction to review the delegate's decision.

11 On 2 July 2024, the Minister’s Decision was made.

12 On 14 May 2025, the primary judge dismissed the appellant's application for judicial review of that decision.

3. GROUND 1A

13 By Ground 1A the appellant contends that the primary judge erred by failing to find that the Minister’s reasoning in affording no weight to the legal consequences of the Minister’s Decision was unreasonable, illogical or irrational.

14 The primary judge set out the relevant parts of the Minister’s Decision at PJ [23] before addressing the appellant’s relevant grounds of review at PJ [25]–[60]. The appellant’s central complaint related to the Minister’s Decision at MD [80], where after considering the “legal consequences of the decision” at MD [69]–[79], the Minister concluded that:

Pending any future full assessment of relevant claims by [the appellant], I have not given this consideration weight in my consideration of visa cancellation under s501BA.

15 The appellant submits that the primary judge erred by failing to find that, in giving the legal consequences of the Decision no weight, the Minister had failed to “grapple with the direct legal consequences of the decision to cancel the visa” in circumstances where there was evidence before the Minister about the deleterious impact of detention on the appellant’s health including evidence from a forensic psychiatrist, Dr Stephen Allnutt. The appellant submits that, faced with this evidence, it was “unreasonable, illogical and irrational” for the Minister to conclude that no weight should be given to the fact that the appellant would be liable to detention as a legal consequence of the Decision. The appellant submitted that:

(a) every period of prospective detention under s 189 of the Act is of unknown duration as the Minister cannot know for certain exactly how and when a person's detention will end;

(b) the fact a decision-maker does not know precisely how long detention will last does not mitigate the fact that a person will be detained, or eliminate the need to consider that detention as a legal consequence of the decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]–[9] (Allsop CJ and Katzmann J); WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 at [123] (Kenny and Mortimer JJ);

(c) in this case, “indefinite detention” flowed automatically, directly, and inevitably from the cancellation of the appellant's visa: citing BNGP v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [101] (Perry J, Bromwich and Kennet JJ agreeing); CRRN v Minister for Immigration and Multicultural Affairs Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [60] (Owens J);

(d) indefinite detention is, by its nature, “detention without a chronologically fixed endpoint”, “dependent on the completion of various administrative and executive steps”, such that “[t]he person concerned will have no accurate conception of when her or his detention might end”: citing WKMZ at [132];

(e) in exercising a cancellation power, the Minister must consider “what is being done to people” (citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] (Allsop CJ)) which includes consideration of the practical realities in human terms of the legal consequences: citing CRRN at [60] and Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 at [107] (North J), [129] (Perry and Kenny JJ);

(f) it is inherently irrational to reason that the prospect of indefinite detention – with its attendant psychological harm – could be afforded no weight;

(g) the uncertainty and consequent psychological toll of indefinite detention demand the attribution of greater weight than would be attributed for a brief, fixed and knowable period of detention; and

(h) in circumstances where there was uncontradicted evidence that detention would perpetuate and aggravate the appellant's poor mental health (based on Dr Allnutt's report), the Minister could not reasonably, rationally or logically determine that uncertainty about duration meant detention could carry no weight in his assessment.

16 In response to these submissions, the Minister submitted that he was under no obligation to have regard to or consider “any particular factual issues” including the adverse impact upon on an unlawful non-citizen from being taken into immigration detention: citing Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61] (McKerracher, Markovic and SC Derrington JJ). Relatedly, the Minister submitted that he could not engage in jurisdictional error in evaluating and giving consideration to a matter that he was not mandatorily bound to take into account, and any such error would be within jurisdiction: citing Snedden v Minister for Justice [2014] FCAFC 82; 230 FCR 82 at [153], [163] (Middleton and Wigney JJ), [242] (Pagone J); HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133; 294 FCR 13 at [72] (Yates, Abraham and McElwaine JJ). The Minister further submitted that, in giving consideration to the legal consequences of the decision, the Minister was only required to have regard to the direct and immediate statutorily prescribed consequences arising from the framework of the Act and not any indirect consequences such as those relating to the...