On 9 March 2026, the Full Court of the Federal Court of Australia (Bromwich, Thawley and Kennett JJ) delivered judgments in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19 and Archer v Minister for Immigration and Citizenship [2026] FCAFC 20.
The judgments unanimously decide a significant aspect of administrative law in favour of the Minister. In particular, the Full Court overturned previous caselaw and held that there is no implied temporal limitation on the Minister’s ability to exercise his personal power in section 501BA(2) of the Migration Act 1958 (Cth) to intervene in the national interest and cancel the visas of non-citizens who do not satisfy Australia’s “character test” (which mainly arises in cases of significant criminal offending). As Thawley J pithily explained at [32] in XMBQ in rejecting any temporal limitation, “[t]he implication adopted by the primary judge produces a power that expires at no fixed time, and which could only be determined by retrospective judicial assessment, without any statutory guidance as to when expiry occurs. It would expire at different times for different people. No person could know whether the power existed when it was exercised.”
Jonathan Kay Hoyle SC appeared for the successful Minister in both appeals leading Ms J Lucas in XMBQ (and instructed by Clayton Utz) and Mr A F Solomon-Bridge in Archer (instructed by Sparke Helmore). Links to the judgments are available here: