Background
Brenton Earle Morgan, a New Zealand citizen who had lived in Australia since childhood, had his Subclass 444 visa mandatorily cancelled after receiving a 10-year prison sentence for trafficking a large commercial quantity of drugs. The Administrative Review Tribunal later revoked that cancellation.
On 9 March 2026, the Assistant Minister personally exercised the power in s 501BA(2) of the Migration Act 1958 (Cth) to set aside the Tribunal’s revocation and cancel Morgan’s visa. Morgan sought judicial review, alleging legal unreasonableness because the Assistant Minister treated his relationship with a new partner as untested in the community without obtaining updated information after Morgan became eligible for parole.
The Court’s Holding
Justice Hespe dismissed the application with costs. The Court held that the Assistant Minister’s reasoning was not legally unreasonable or irrational.
Properly understood, the Assistant Minister had not found that Morgan’s relationship had never been tested outside prison at all. Rather, the Minister reasonably considered that a relationship formed while Morgan was incarcerated, and experienced outside prison for no more than about eight weeks, had not yet been tested through the life stressors relevant to whether it would protect against relapse and reoffending. The Minister was not legally required to seek current information before making a s 501BA decision, and the finding was open on the material available.
Key Takeaways
- A s 501BA visa-cancellation decision may be made without procedural fairness or a statutory duty to obtain updated evidence.
- Delay and dated material can make a decision unreasonable in some cases, but the issue turns on the particular finding and evidence.
- A decision-maker could reasonably give limited weight to a new relationship as a protective factor where it had not meaningfully endured ordinary community stressors.
Why It Matters
The decision illustrates the fact-specific nature of legal-unreasonableness challenges to ministerial visa cancellations. A failure to seek updated material will not itself establish jurisdictional error; the question is whether the inference actually drawn was logically open on the record.
It also confirms that, when assessing future risk, the Minister may distinguish between the existence of a support relationship and demonstrated evidence that it can mitigate the risks associated with an applicant’s past offending.