Background
Dale Jay Garratt, a United Kingdom citizen who migrated to Australia as a teenager, held a Skilled Independent visa. In 2021 he was convicted in Queensland of more than 70 offences, including weapons, drug possession and commercial drug-trafficking offences, and received an eight-year sentence. His visa was mandatorily cancelled under s 501 of the Migration Act 1958 (Cth).
The then-Administrative Appeals Tribunal revoked that cancellation in December 2022. In May 2025, however, the Assistant Minister exercised the s 501BA power to set aside the Tribunal’s decision and cancel the visa, finding that Garratt did not pass the character test and that cancellation was in the national interest. Garratt sought judicial review, alleging unreasonable delay and legal unreasonableness in the assessment of his reoffending risk.
The Court’s Holding
Justice Derrington dismissed the legal-unreasonableness ground. The Assistant Minister had a rational and probative basis to find a low, but not negligible, risk that Garratt could relapse into drug use and reoffend. The forensic psychologist’s report supported a low-risk classification; it did not make the Assistant Minister’s conclusion illogical.
The Court held that assessing future risk is ultimately for the decision-maker, who may draw on expert evidence but is not bound by it. The Assistant Minister could consider Garratt’s lack of structured rehabilitation after release, the possibility of workplace exposure to drugs, and past financial motivations for offending. The delay ground was not finally determined because the High Court had granted special leave in M 86 of 2026 XMBQ v Minister for Immigration and Citizenship. The proceeding was stayed pending that decision, with costs reserved.
Key Takeaways
- A low assessed risk of reoffending can still support a visa-cancellation decision where the decision-maker rationally finds the risk is not negligible.
- Expert risk evidence assists but does not displace the Minister’s statutory task of assessing future risk.
- The Court dismissed the risk-assessment challenge but preserved the delay issue pending the High Court’s decision in XMBQ.
Why It Matters
The decision illustrates the narrow scope of judicial review for alleged illogicality in migration character decisions. Courts will not reweigh risk evidence merely because an applicant prefers the expert’s characterisation or the decision-maker gives different weight to protective and adverse factors.
It also leaves open whether delay in exercising the s 501BA power may affect the validity of the decision, depending on the High Court’s resolution of XMBQ.