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Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (16 January 2022)

Facts:-

The applicant, Mr Djokovic, is a citizen of Serbia. He is currently the world’s number 1 ranked men’s tennis player. Mr Djokovic was issued a Class GG subclass 408 Temporary Activity visa on 18 November 2021 for the purpose of competing in the Australian Open Tennis Championship.

He arrived in Australia on 5 January 2022. Upon his arrival, he was taken to immigration clearance and questioned by officers of the Department of Home Affairs until the early hours of 6 January 2022.

On the same day, his visa was purportedly cancelled by a delegate of the Minister for Home Affairs under s 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act). That provision is at the centre of the proceeding and is in the following terms:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
...
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community ...

Subsections (2) and (3) are not relevant.

Mr Djokovic immediately commenced a proceeding in the Federal Circuit and Family Court of Australia (Division 2) seeking to quash the decision to cancel his visa on the ground that the process adopted by the delegate of the Minister for Home Affairs in cancelling the visa was legally unreasonable.

A Judge of the FCFC granted Mr Djokovic interim relief late on 6 January 2022. The matter was set down for final hearing to commence on Monday 10 January 2022. At the hearing on that day, counsel for the Minister for Home Affairs conceded that the process adopted by her delegate was, as Mr Djokovic alleged, legally unreasonable by reason of a denial of procedural fairness, or to use a synonymous phrase and one used in the Act, “natural justice”. As a result, the Court made an order quashing the purported cancellation decision.

Immediately thereafter at the hearing, counsel for the Minister for Home Affairs said that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), the respondent in this proceeding, would be considering whether to exercise the personal power of cancellation (that is a power not capable of being exercised by a delegate of the Minister, but one only for the Minister’s consideration and exercise personally) pursuant to s 133C(3) of the Act.

Sections 133C(3) and (4) are in the following terms:

(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).

As s 133C(4) makes clear, there was no requirement upon the Minister in exercising his powers under s 133C(3) to afford Mr Djokovic natural justice (that is procedural fairness).

Mr Djokovic and those who advised him, having been made aware of the Minister’s intentions, provided material and submissions to the Minister as to why the power in s 133C(3) should not be exercised. Late in the day on Friday 14 January 2022, the Minister exercised his power to cancel the visa relying on s 133C(3). By letter dated that day, the Minister advised Mr Djokovic of that decision, and provided a ten page statement of reasons.

Under the Act, the FCFC and not the Federal Court of Australia had original jurisdiction to hear what is referred to in the Act as a “privative clause decision”: see generally ss 476 and 476A of the Act.

The FCFC then transferred the proceeding to this Court, pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That decision was confirmed by a judge of this Court on the following day, as a result of which the Federal Court has jurisdiction in relation to this proceeding pursuant to s 32AD(3) of the Federal Court of Australia Act 1976 (Cth).

In the meantime, Mr Djokovic had filed in the FCFC an originating application for review of the decision, together with supporting materials. Subsequently, an amended application dated 15 January 2022 was filed in this Court pursuant to leave granted on that day by the Court.

On the same day, pursuant to s 20(1A) of the Federal Court of Australia Act, the Chief Justice directed that the original jurisdiction of the Court in this proceeding be exercised by a Full Court. The Chief Justice explained the reasons for making the direction at the commencement of the hearing on the following day, 16 January.

The application was heard on Sunday, 16 January. At the conclusion of the hearing, the Court made orders dismissing the amended application, with costs, to be agreed or failing agreement to be assessed. The Court said that it would provide written reasons for the making of those orders. These are those reasons.

As will be explained in the reasons below, an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

The Relevant Statutory Provisions

We have set out ss 116(1)(e)(i) and 133C(3) above. The elements of s 133C(3) should be noted: a power or a discretion to cancel a visa (“may cancel a visa”) held by a person; if the Minister is satisfied that a ground for cancellation under s 116 exists; and (separately and in addition) the Minister is satisfied that it would be in the public interest to cancel the visa.

The elements of s 116(1)(e)(i) should be noted. As with ss 133C(3)(a) and (b), the power in s 116 is engaged by or conditioned upon the Minister being satisfied of certain matters, here satisfied of the matters in para (e)(i). Those matters are, relevantly for present purposes, that the presence of the visa holder in Australia is or may be, or might be, a risk to the health, safety or good order of the Australian community or a segment of it.

The state of “satisfaction”

Thus it is not the fact of Mr Djokovic being a risk to the health, safety or good order of the Australian community; rather it is whether the Minister was satisfied that his presence is or may be or would or might be such a risk for the purposes of s 116(1)(e)(i), through s 133C(3).

The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131]

Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.

Chief Justice Latham in R v Connell approached the matter as presenting the question: “whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous”.

Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must “act in good faith; [he or she] cannot act merely arbitrarily or capriciously” and “where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the] decision could not reasonably have been reached”.

Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker “must not act dishonestly, capriciously or arbitrarily ... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, then ... the Courts of law cannot and ought not interfere”.

Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at at 654 [137]:

.... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question

Findings of fact without relevant evidence or material

Related to the above body of principle is a ground of review, invoked in this proceeding in relation to two of the three grounds of review mounted, that a finding of fact, here connected to the formation of a state of satisfaction, was made in the absence of any evidence or supporting material. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) recently put the matter as follows in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17]:

If the Minister exercises the power conferred by s 501CA(4) [a provision in the Act concerning the Minister’s power to revoke the cancellation of a visa] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.

Illogicality, irrationality and legal unreasonableness

As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258–260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 350–351 [26]–[29], 362 [63] and 370 [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 624–625 [39]–[40].

As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3–4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 445–446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.

That taxonomy should not, however, be taken to mask the interrelationship of result and specific error. Nevertheless here, as shall be seen, the complaints made were directed to identifiable errors: a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction, illogical or irrational reasoning central to the reaching of the relevant state of satisfaction, and such matters also affecting the exercise of discretion. It was not the applicant’s case that aside from the identified errors the outcome was so overwhelmingly wrong that it must be characterised as unlawful.

The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

The “public interest” for s 133C(3)(b)

The phrase “public interest” is a broad one and especially so when an aspect of the power vested in a Minister responsible to Parliament: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at 46–48 [39]–[46]; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231. Further, it is to be recalled that the relevant inquiry is as to the lawfulness of the Minister’s satisfaction that it was in the public interest to cancel the visa, the Minister being satisfied of the ground for cancellation under s 116 (see s 133C(3)(a)), here satisfied of the matters in s 116(1)(e)(i).

Issues:-

Ground 1: Whether the Minister's decision was affected by jurisdictional error because the Minister reached the state of satisfaction illogically, irrationally or unreasonably and the discretion to cancel the visa was unreasonably exercised, because the Minister did not consider whether cancelling Mr Djokovic’s visa may itself foster anti-vaccination sentiment in Australia?

Ground 2: Whether it was open to find that the presence of Mr Djokovic in Australia is or may be a risk to the health or good order of the Australian community?

Ground 3: Whether it was open to the Minister to find or conclude that Mr Djokovic had a stance that was well-known on vaccination and that he was opposed to it?

Consideration:-

It is convenient to deal with the grounds in reverse order.

Ground 3

We reject the proposition that it was not open to the Minister to find or conclude that Mr Djokovic had a stance that was well-known on vaccination and that he was opposed to it.

“Attachment H” referred to in the Minister’s reasons was an article entitled “What has Novak Djokovic actually said about vaccines?” which reported that, in April 2020, Mr Djokovic apparently said that he was “opposed to vaccination”. Although he had qualified this by saying that he was “no expert” and “would keep an open mind”, he apparently said that he wanted to have “an option to choose what’s best for my body”. He was reported also to have stated on Facebook that he “wouldn’t want to be forced by someone to take a vaccine” to travel or compete in tournaments. Further, he added that he was “curious about wellbeing and how we can empower our metabolism to be in the best shape to defend against imposters like Covid‑19”. His comments were apparently criticised by the Serbian Government epidemiologist at the time.

Whilst qualified, these views were expressed and publicly known even before there was a COVID-19 vaccine.

Further, there was no issue but that Mr Djokovic was not, by January 2022, vaccinated. It was plainly open to the Minister to infer that Mr Djokovic had for over a year chosen not to be vaccinated since vaccines became available. That he had a reason not to have a vaccination at the time of the decision in January 2022, apparently having contracted COVID‑19 on or about 16 December 2021, did not say anything as to the position for the many months from the availability of vaccines to December 2021. It was plainly open to the Minister to infer that Mr Djokovic had chosen not to be vaccinated because he was opposed to vaccination or did not wish to be vaccinated.

Whilst the Minister had not asked Mr Djokovic about his present attitude to vaccines: D[19] ([53] above), that only meant that there was no express statement to the contrary of what could be inferred to be his attitude up to January 2022. Mr Djokovic had not volunteered any information when interviewed at the airport by officers of the Department of Home Affairs. He did not give evidence of any apparent change of attitude.

It was also open to the Minister to infer that the public would view his attitude as the media had portrayed: that he was unwilling to be vaccinated.

Ground 2

The central proposition of Mr Djokovic’s argument was that the Minister lacked any evidence and cited none that his presence may “foster anti‑vaccination sentiment”. There was no evidence, it was submitted, that he had urged people not to be vaccinated. Nor was there any evidence that in the past his circumstances had fostered such a sentiment in other countries.

However, it was open to infer that it was perceived by the public that Mr Djokovic was not in favour of vaccinations. It was known or at least perceived by the public that he had chosen not to be vaccinated. There was material (in Attachment H) before the Minister and to which he referred in the reasons that anti‑vaccination groups had portrayed Mr Djokovic as a hero and an icon of freedom of choice in relation to being vaccinated.

It is important to recognise, however, that the Minister’s reasons can be seen to encompass the encouragement not only to anti‑vaccination groups, some of whom may have extreme views and some of whom may be a risk to the good order or public order in the community, but also to people who may simply be uncertain or wavering as to whether they will be vaccinated.

The evidence concerning the support or galvanising of the former group concerned the circumstances of the cancellation of Mr Djokovic’s visa by the delegate of the Minister for Home Affairs, rather than Mr Djokovic’s views regarding vaccination. Nevertheless, the evidence did display an affinity of these groups with his views.

The possible influence on the second group comes from common sense and human experience: An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him. This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster anti‑vaccination sentiment.

There is a question, not explored in argument, as to the extent to which one can or should characterise lawful, even if robust, rallies and protests in the free expression of political or social views (even if unpopular or held only by a few people) as a threat to good order. In the absence of argument or of it being an issue, we do not comment any further on this. Common recent experience does, however, demonstrate that some rallies and demonstrations concerning COVID‑19 and measures to limit movement and activity of the public have involved some violent activity and have been the occasion for the spreading of the disease or at least that is open to be inferred.

It was not irrational for the Minister to be concerned that the asserted support of some anti‑vaccination groups for Mr Djokovic’s apparent position on vaccination may encourage rallies and protests that may lead to heightened community transmission.

Further, there was evidence at D[23] that Mr Djokovic had recently disregarded reasonable public health measures overseas by attending activities unmasked while COVID positive to his knowledge. It was open to infer that this, if emulated, may encourage an attitude of breach of public health regulations.

Ground 1

The Minister cancelled Mr Djokovic’s visa because he was “satisfied” that the presence of Mr Djokovic in Australia may be a risk to the health or good order of the Australian community:

In substance, Mr Djokovic contended that that decision was affected by jurisdictional error because the Minister reached the state of satisfaction illogically, irrationally or unreasonably and the discretion to cancel the visa was unreasonably exercised, because the Minister did not consider whether cancelling Mr Djokovic’s visa may itself foster anti-vaccination sentiment in Australia.

In their written submissions, counsel for Mr Djokovic put their contention as follows (emphasis in original):

The vice with the Minister’s reasoning, on this central premise, is that it involves an irrational, illogical or unreasonable approach to the purported formation of either or both of the requisite states of satisfaction in section 133C(3)(a) and (b), or the exercise of discretion:

(1) to address the prospect of Mr Djokovic’s presence in the Australia (consequent to a non-cancellation decision) “foster[ing] anti-vaccination sentiment”; but

(2) not to address the prospect of the binary alternative outcome (consequent to a cancellation decision that the Minister ultimately selected), being Mr Djokovic’s detention and expulsion from Australia and the attraction of consequential bars to re-entry “foster[ing] anti-vaccination sentiment”, including at least potentially of an equal of not more deep or widespread kind.

It was further contended that “[i]t is even more obvious that a decision to detain and expel Mr Djokovic based on two historic statements about vaccination would be apt to ‘foster anti‑vaccination sentiment’”, in circumstances where the Minister assumed or found that Mr Djokovic posed a negligible COVID-19 risk to others, had a medical reason for not being vaccinated, had entered Australia lawfully and consistently with ATAGI documents and in circumstances where almost every discretionary factor weighed against cancellation.

Ground 1 should be dismissed. It was not necessary for the Minister to consider and weigh in the balance the two “binary” choices contended for by Mr Djokovic. The power to cancel relied upon by the Minister in this case arose once he was “satisfied” that “the presence of [the visa] holder in Australia ... may be ... a risk to ... the health, safety or good order of the Australian community”. The words of the statute direct attention to the “presence” of the visa holder in Australia. No statutory obligation arose to consider what risks may arise if the holder were removed from, or not present in, Australia. The provision cannot be interpreted as requiring the Minister to examine the consequences of cancellation by way of a counterfactual, directed as it is to the considerations of risk by reference to presence.

That the statute does not require such a consideration to be examined does not foreclose the possibility that not to do so in a given circumstance would or might be irrational or unreasonable. However, it is not easy to contemplate such a circumstance. There is nothing by way of logic that demands it, bearing in mind that the statute refers to the consequences of presence of the visa holder in Australia. It may be that there would be an even greater risk to good order or health by the fostering of demonstrations if the visa was cancelled and the erstwhile visa holder removed from Australia, but that says nothing about the risk arising from the visa holder’s presence in Australia, which is the statutory enquiry. The notion that the Minister must, to be logical, examine both hypotheses is only to force the Minister to adopt one way of approaching the exercise of the discretion.

That is not to say that if the Minister chose to examine the risk in the posited counterfactual, he could not do so (given the terms of the provision are directed to presence, it would be in evaluating the public interest or the exercise of the discretion to exercise the power). The Minister would not be prohibited by the section from doing so; and it is not an irrelevant consideration for these purposes in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24.

In any event, the Minister was, because he recognised it in his reasons, aware of the fact that “unrest” in the community occurred following the decision of the Minister for Home Affairs to cancel Mr Djokovic’s visa on the day following his arrival into Australia. At D[46] the Minister said as follows: “I also acknowledge that Mr DJOKOVIC is now in the community, and that some unrest has already occurred, such that it is too late to avoid it. This weighs in my mind against the public interest in cancellation”. Whilst it is far from clear to what event this is a reference, the Minister can be taken to be aware of protests that occurred in Melbourne on 11 January 2022 involving supporters of Mr Djokovic.

The Minister also, at D[44], recited arguments raised by Mr Djokovic’s lawyers as to why he considered it would not be in the public interest to cancel his visa. Those reasons included that cancelling the visa would “be likely to adversely affect Australia’s global reputation and call into question its border security principles and policies”, “prejudice Australia’s economic interests, and jeopardise the viability of Australia continuing to host the Australian Open”, and “create the appearance of politically motivated decision-making”.

Although the Minister did not weigh in the balance the binary choices contended for by Mr Djokovic, it can be taken that he was aware of any number of different consequences that might ensue if the visa were cancelled, including unrest, but that having noted each of those matters referred to, the Minister is to be taken as not having regarded them as something that, within the exercise of his discretion, he regarded as necessary to weigh in the balance of things.

Further, the weighing of the counterfactual as to unrest and encouragement of anti‑vaccination sentiment would not affect the second group of people to whom we have referred as the hesitant or wavering. These people, who may, it can be inferred, be influenced by Mr Djokovic’s presence, would not be influenced relevantly in the way we have described by his absence.

For the above reasons ground 1 must fail.

Further matters

Parliament has made clear in s 116 that the Minister may cancel a visa if he or she is satisfied that presence of its holder in Australia may be a risk to the health or good order of the Australian community. The Minister reached that state of satisfaction on grounds that cannot be said to be irrational or illogical or not based on relevant material. Whether or not others would have formed that state of satisfaction and the state of satisfaction as to the public interest is a consideration not to the point. The relevant states of satisfaction were of matters which involved questions of fact, projections of the future and evaluations in the nature of opinion. As Gummow J said in Eshetu 197 CLR at 654 [137]: “where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”.

That is the position in this case. Another person in the position of the Minister may have not cancelled Mr Djokovic’s visa. The Minister did. The complaints made in the proceeding do not found a conclusion that the satisfaction of the relevant factors and the exercise of discretion were reached and made unlawfully.

Conclusion:-

The amended application be dismissed with costs, such costs to be agreed or failing agreement assessed.

 

Added a post 

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7 (15 January 2022)

Intro:-

On 6 January 2022, a delegate of the Minister for Home Affairs purported to decide that the applicant’s visa be cancelled and he be removed from Australia (first decision). To that end, the applicant was immediately placed in detention.

In proceeding No MLG35/2022 wherein Novak Djokavic was applicant and the Minister for Home Affairs was respondent, orders were made on Monday, 10 January 2022 quashing the purported first decision to cancel the visa and that the applicant be released from detention forthwith. The parties were agreed in the making of those orders. The applicant’s visa took effect upon that Order becoming operative and the applicant was released from detention thereafter.

When that Order was made on 10 January 2022, counsel for the respondent informed the Court of his instructions that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs may consider whether to exercise a personal power of cancellation pursuant to sub-section 133C(3) of the Migration Act 1958.

The applicant has furnished submissions and supporting documentation to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs against the exercise of the personal power to cancel his visa.

At about 5:45 p.m., on Friday, 14 January 2022, the respondent, made a decision, purportedly pursuant to s 133C(3) of the Migration Act 1958, to cancel the applicant’s visa, doing so on the stated ground that the power conferred by par 116(1) of the Migration Act 1958 was engaged “on health and good order grounds, on the basis that it was in the public interest to do so” (second decision). The applicant contends that the reasons assigned by the respondent for the making of the second decision are substantively different from those of the delegate who made the first decision.

In a proceeding commenced this day, the applicant seeks to contend that the second decision, purportedly made under s 133C(3) of the Migration Act, is also tainted by material jurisdictional error and should be quashed. The respondent to this proceeding also disputes those contentions.

Facts:-

The applicant, a Serbian citizen, is a professional tennis player of international renown.

On 18 November 2021, the applicant was issued his temporary activity visa.

It does not appear that any provisions or conditions (of the kind which are not uncommonly located, for example, in the Migration Regulations 1994 (Cth) or ministerial directions as may be authorised and made pursuant to s 499 of the Migration Act 1958), expressly proscribed the applicant from travelling to, entering or remaining temporarily in Australia where he had not been vaccinated against Covid-19. The search for any such express proscription lay elsewhere.

Any general express requirement for such vaccination may be located in various documents promulgated by the Australian Technical Advisory Group on Immunisation (ATAGI), a body established by the Commonwealth Department of Health. The first is entitled “ATAGI expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for Covid-19 vaccines” that was updated on 26 November 2021. This guidance was augmented by further advice furnished by ATAGI on 14 December 2021 in relation to the definition of the expression “fully vaccinated” as applied, it seems, to “people returning from overseas travel”. While the status of this ‘guidance’ remains to be determined, the court takes judicial notice of the significant impact which the outbreak of this pandemic has had worldwide and in particular, on the Australian economy, its peoples, their livelihoods, their physical and mental health and that these are matters for government policy. So much was accepted by the parties: Evidence Act 1995 (Cth), ss 144(1)(a)-(b), 144(4).

Interim relief was granted to the applicant late on 6 January 2022 and the matter was set down for final hearing to commence on Monday, 10 January 2022 (with a number of interim hearings being conducted on 8-9 January 2022). Ultimately, the parties to that proceeding were agreed in orders quashing the cancellation decision made on 6 January 2022 and for the applicant’s immediate release from detention. However, at the time when those orders were pronounced, counsel for the Minister for Home Affairs quite candidly and properly disclosed to the court his instructions that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had under active consideration whether the personal power conferred by s 133C(3) of the Migration Act 1958 to cancel the applicant’s visa would be exercised.

At a time that is presently not disclosed by the evidence, the parties to this proceeding engaged in further communications, including that the applicant made detailed submissions (and supplied supporting documentation) to the respondent in relation to the exercise of power pursuant to s 133C(3) of the Migration Act 1958. The respondent took some time to consider those submissions. At about 5:45 p.m. on Friday, 14 January 2022, the respondent made a decision to cancel the applicant’s visa, purportedly doing so in the exercise of power under s 133C(3).

In a media statement made by the respondent, the Minister advised that the exercise of his power under s 133C(3) “on health and good order grounds, on the basis that it was in the public interest to do so.” The Minister further advised that his decision followed orders made by this court on 10 January 2022, quashing the first decision on procedural fairness grounds alone (and as to which it may be noted the parties were agreed in the making of those orders). The Minister further stated that in making his decision he had “carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.” The Minister expressed the government’s firm commitment “to protecting Australia’s borders, particularly in relation to the Covid-19 pandemic.” Upon the principles considered below he is liable to be placed in detention immediately. In that connexion the applicant would be being treated no differently from any other person who, for the purposes of the Migration Act 1958, answers the description of an unlawful non-citizen.

Having regard to the urgency of the matter, no formal application was filed and upon the undertaking of his senior counsel to file and serve such a document, the court was amenable to the application proceeding on the basis of an oral application.

Judicial Review

Part 8 of the Migration Act 1958 is entitled Judicial review, and comprises ss 474-484. Within Div. 1 of Pt. 8, s 474(1) provides that a “privative clause decision” is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. In s 474, the expression “privative clause decision” has the meaning given to it by s 474(2) and includes a decision, relevantly cancelling a consent or permission (including a visa): Migration Act 1958, par 474(3)(c). Further, sub-ss 474(4)-(5) of the Migration Act 1958, identify, by a process of exclusion, certain kinds of decisions made pursuant to specified provisions of the Act and regulations which are not privative clause decisions.

A decision, or a purported decision, made under s 133C(3) to cancel a visa is not excluded and so falls within the definition of a privative clause decision under Pt 8 of the Migration Act 1958.

Subject to s 476 of the Migration Act 1958, this court has the same original jurisdiction in relation to migration decisions as the High Court has under par 75(v) of the Constitution. However, it has no jurisdiction in relation to a primary decision or a privative clause decision.

Being a privative clause decision, the respondent’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error: Migration Act 1958, ss 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Migration Act 1958, s 476(2).

The judicial review of an administrative decision is confined to an examination of the legality of the decision under review. It is not a procedure in the nature of an appeal which permits a general review of the decision or a substitution of the decision which the court considers ought to have been made: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [23] (French CJ, Bell, Keane and Gordon JJ).

The applicant bears the onus of demonstrating that the approach taken by the decision-maker manifested a legally erroneous view as to what the application for merits review was about such that the decision-maker thereby lacked authority to make the decision that was made: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [24] (French CJ, Bell, Keane and Gordon JJ) citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, [55] (Gleeson CJ and McHugh J).

The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.” Attorney-General (NSW) v Quin (1990) 170 CLR 1, [36] (Brennan J); see also, Minister for Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, [51] (Gageler J).

Applicable principles – visas to travel to, enter and remain in Australia

The object of the Migration Act 1958 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. In the advancement of that object, the Act provides for visas permitting non-citizens to enter or remain in Australia, it being intended that the Act be the only source of a non-citizen’s right to so enter or remain in this country and that the Act should provide for the removal or deportation from Australia of non-citizens whose presence in Australia is not, or is no longer, permitted: Migration Act 1958, s 4.

Within Pt. 2 of the Act, Arrival, presence and departure of persons, Sub-div D of Div. 3, Visas for non-citizens, provides that Visas may be cancelled on certain grounds and comprises ss 116-118. A visa may be cancelled when a non-citizen is in immigration clearance: Act, par 117(1)(b). Section 116, which is of particular import to the present application confers power on the Minister to cancel a visa in certain circumstances and relevantly provides:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)-(c) . . .

(d) if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (information given by holder) if its holder had so entered and been immigration cleared; or

(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii) the health or safety of an individual or individuals; or

(f)-(g) . . . .

(1AA)-(2) . . .

(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

It is convenient to observe s 116 is structured so as to provide, disjunctively, for a series nine broad categories of circumstance in which the statutory power conferred by that section may be engaged. For the purposes of the Act, the term ‘prescribed’ means prescribed by the regulations: Act, s 4. It does not appear that any other provisions in s 116 are relevant.

Ministerial cancellation of visas

Within Div. 3 of Pt. 2, Sub-div. FA, which comprises ss 133A-133F, addresses the subject, Additional personal powers for Minister to cancel visas on section 109 or 116 grounds.

By way of overview, amongst the several personal powers conferred on the Minister under this subdivision of the Migration Act 1958, the provisions are structured in a manner which distinguish between those actions by the Minister to which the rules of natural justice will apply, and to those other actions to which any natural justice requirements are expressly excluded. Repeated features of the provisions of this Sub-div FA include that: (a) the powers to cancel a visa are conferred in imperative terms which require the Minister to exercise the power personally (i.e. such powers are non-delegable); (b) the provisions are expressed in terms making it clear that the power of cancellation is not coupled with a duty to consider whether to exercise certain other powers; (c) in some cases, the scope of the cancellation power is not limited by s 138(4) (and which, although immaterial, removes power in the Minister to vary or revoke a decision to cancel a visa after a record of such decision has been made).

Section 133C is entitled Minister’s personal powers to cancel visas on section 116 grounds and is structured under three subheadings: Action by Minister – natural justice applies; Action by Minister – natural justice does not apply, and; Ministers exercise of power.

Relevantly, ss 133C(3)-(6), each of which fall within the second category above (Action by Minister – natural justice does not apply), read:

(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exist; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa.

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F do not apply to a decision under subsection (3).

(5) The Minister may cancel a visa under subsection (3) whether or not:

(a) the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or

(b) the visa holder responded to any such notification; or

(c) the Administrative Appeals Tribunal . . .

(i) . . .

(ii) . . .

(d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.

(6) If a decision was made as mentioned in paragraph 5(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section)

In the result, the personal power conferred on the Minister to cancel the visa under s 133C(3) is a power: (a) to which the rules of natural justice do not apply; (b) to which the procedures set out in Sub-div E (notice of cancellation and provision of particulars coupled with invitation to comment within prescribed period et cetera), do not apply; (c) to which the procedures set out in Sub-div F (cancellation for visa holders outside of Australia, provision of particulars coupled with invitation to comment within prescribed period et cetera), do not apply. Where the power is engaged, it may be exercised whether or not the visa holder was: (i) notified pursuant to s 119 that cancellation of the visa was under consideration; (ii) given particulars of the grounds under s 116 upon which it appeared to exist that the Minister may be satisfied the visa might be cancelled, or; (iii) invited to show, within a specified time that such ground did not exist or there was good reason why the visa should not be cancelled.

Above the heading to ss 133C(7)-(10), Minister’s exercise of power, provision is made that the power of cancellation is non-delegable and is not coupled, relevantly, with a duty to consider whether to do so. Further, s 117 which makes provision for the circumstances “When visa may be cancelled” applies, so far as is material to the conferral of power under s 133C(3) and so applies “in the same way as it applies to the cancellation of a visa under section 116.”

Section 133F confers power on the Minister to revoke certain cancellation decisions, including those made under s 133C(3).

As the text of s 133C(3) makes clear, and as is confirmed by its context within the broad range of other cancellation powers conferred by Div. 3 of Pt 2 and the other cancellation powers conferred by the Migration Act 1958 more broadly (including, for example, s 500), the personal discretionary power of cancellation is confined by its express terms.

It is beyond the scope of the present application to determine whether or not the limitations on the power conferred by s 133C(3) serve to magnify or diminish the importance of demonstrating the existence of facts and circumstances upon which the Minister could properly determine that he or she should or should not be satisfied that: (a) a ground for cancelling the visa under s 116 exists, and; (b) it would be in the public interest to cancel the visa. For immediate purposes the self-evidently significant and immediate consequences of cancellation to the visa holder should be observed. But it is in the context of those significant and immediate consequences that demonstration of the existence of facts and circumstances capable of supporting a conclusion that each of the criterion in s 133C(3)(a) and (b) (namely, the existence of a valid ground under s 116 for cancellation together with a conclusion it would be in the public interest to cancel the visa fall for examination) are of such importance.

Upon cancellation, a person who held a valid visa becomes an unlawful non-citizen. Persons who are unlawful non-citizens are to be detained and removed from Australia as soon as is reasonably practicable, including where the non-citizen asks the Minister, in writing, to be so removed: Migration Act, ss 14, 189, 198.

Issue:-

1) Whether the minister's decision is a privative clause decision for the purposes of the Migration Act, 1958 (Cth)?

2) where Minister for Immigration cancels applicant's visa pursuant to personal powers conferred by Section 133C(3) of Migration Act 1958 (Cth), whether Minister is satisfied that a ground for cancelling the visa under section 116 exists and whether it is in the public interest to do so?

3) Whether it was in the administration of justice to transfer the proceeding to the Federal Court?

Consideration

Ground 1

The respondent’s cancellation decision is a privative clause decision for the purposes of s 476 of the Migration Act 1958 and accordingly this court’s jurisdiction is confined by that section.

Unless the applicant, who bears the onus of proof, is able to demonstrate that the respondent’s cancellation decision is tainted by jurisdictional error, the court has no jurisdiction to quash it, or to grant relief in relation to it, and the decision is thus final and conclusive. However, and despite the very wide terms in which it is expressed, a statutory, non-delegable, discretion to cancel a visa pursuant to s 133C(3) is by nature, neither unfettered nor at large.

Ground 2

In NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, 123 FCR 298, French J (as his Honour then was), stated:-:

"In determining whether a decision made in purported exercise of a statutory power is invalid for exceeding that power, it is necessary to consider the provision conferring the power and its constitutional and statutory setting. There is no such thing as an absolute or unlimited statutory power. Every Commonwealth statute and every power it confers is confined by constitutional limits. It must be a law with respect to one of the subjects on which the Commonwealth Parliament may make laws under the Constitution. It cannot confer upon an administrative body the judicial power of the Commonwealth. It cannot transgress constitutional prohibitions. Nor, can it reduce the jurisdiction conferred directly on the High Court by the Constitution although it may, by the width of the powers conferred or duties imposed, affect the range of actions in respect of which that jurisdiction may be invoked. A statute conferring a power which apparently exceeds any of these limits must be read down, if that be possible, so that its operation will be confined within the boundaries of validity - s 15A of the Acts Interpretation Act. In the case of the Migration Act there is additional provision in s 3A for the severance of valid from invalid applications, if any, of an offending provision."

Every statutory power, whether subject to an express condition or not, is confined by the subject matter, scope and purpose of the legislation under which it is conferred - Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 (Dixon J), see also 496 (Latham CJ); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 368 (Mason J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 (Mason J); O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 84 (Gaudron and Gummow JJ). A privative clause, however widely expressed, cannot affect those defining attributes of the statute in which it appears, a fortiori where there is, as in the Migration Act, an express statement of its objects. In addition to these general parameters there may be particular conditions on powers expressly imposed by the terms of the statute.

The Migration Act and the Regulations made under it are replete with powers conferred on the Minister and his officers, as well as upon the Tribunals which the Act establishes. Those powers are variously subject to different kinds of conditions which may be classified as follows:

1. A condition precedent requiring the existence of a fact before the power can be exercised.

2. A condition precedent which requires the decision-maker's reasonable belief or suspicion that a fact exists before the power can be exercised.

3. A condition precedent that requires the decision-maker's state of satisfaction as to the existence of a fact before the power can be exercised.

4. A condition which defines the content of the power by reference to its subject matter.

5. A condition which prescribes procedures incidental to or governing the manner of exercise of the power."

Later, his Honour addressed the nature of a condition which turned upon the formation of ministerial satisfaction stating:

An example of the third kind of condition is the Minister's state of satisfaction that the various criteria for the grant of a visa have been satisfied (s 65). So too is the requirement for ministerial satisfaction of certain matters before a visa can be cancelled (s 116). Indeed the formation of the relevant opinion or state of satisfaction will be a jurisdictional fact (discussed below) so that the power is not validly exercised if it does not exist - Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 ("Eshetu") at 653-657 (Gummow J):

"A determination that the decision-maker is not `satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution." (651)

Where a condition on a statutory power requires formation of an opinion or a state of satisfaction as to a matter it is necessary that the opinion or state of satisfaction be based upon a correct interpretation of the relevant statute. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, Latham CJ said at 430:

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power."

And at p 432:

"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."

See also Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, at 118-119 for a similar statement by Gibbs J and Foley v Padley [1984] HCA 50; (1984) 154 CLR 349, for approval of Latham CJ's opinion by Gibbs CJ at 353 and Brennan J at 370. These and related authorities were cited by Gummow J in Eshetu at 652. Where an official or ministerial opinion or state of satisfaction as to a fact is not expressly required to be reasonably based in fact the Court would not ordinarily review it on the ground of the non-existence of the fact that is its subject. But where it can be shown that the opinion or state of satisfaction rests upon error of law such as misconstruction of the statute then it is not the opinion or state of satisfaction required for the exercise of the power. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, at 208-209 Gleeson CJ, Gaudron and Hayne JJ also referred with approval to what Latham CJ said in Hetton Bellbird Collieries when they observed that the Full Bench of the Commission would have committed jurisdictional error if, inter alia, it "misunderstood the nature of the opinion it was to form". See also Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421, at 438-439 per Gleeson CJ and Gummow J and Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 182 ALR 657, at 676 (Gaudron J), 698 (Gummow and Hayne JJ) and 742 (Kirby J).

Those principles were applied in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; (2016) 244 FCR 401, [77]-[78] (Charlesworth J)."

More recently, the High Court has confirmed it to be well-settled that the “satisfaction of the Minister or delegate required to meet that precondition is a state of mind formed reasonably and on a correct understanding and application of the applicable law”: Shrestha v Minister for Immigration and Border Protection [2018] HCA 35, [2] (Kiefel CJ, Gageler and Keane JJ) (citing Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at 35 [33]), [33] (Nettle and Edelman JJ); see also Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69.

These principles are applicable whether one is concerned with the question of ministerial “satisfaction” for the purposes of ss 116, 133C(3) or cognate provisions of the Migration Act 1958.

For obvious and good reason, satisfaction of health criteria may be made essential to the grant or refusal, respectively, of a visa: see, e.g., Migration Act 1958, 65(1)(a)(i). For the purposes of statutory interpretation, words in the singular include the plural. Further, where in any Act a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings: Acts Interpretation Act 1901 (Cth), ss 18A, 23. In the Migration Act 1958, the expression “health criterion” is given a particular meaning and for the purposes of statutory interpretation of that Act, the expression “health criterion” bears the meaning which provided by s 5. Although it has not been the subject of argument, it is unclear whether the combined effect of the requirement for ministerial satisfaction as expressed in par 65(1)(a)(i), coupled with the definitions of “health criterion” and “prescribed” in s 5, confine the issue of ‘health criteria’ as including only those criteria prescribed by regulation.

By 116(1) of the Migration Act 1958, no less than nine alternative generic grounds are provided the satisfaction of which engages a discretionary statutory power in the Minister to cancel a visa. However, in each case, the discretionary power to do so is not enlivened unless the Minister is satisfied of the existence of such a ground.

Upon the basis of the decision announced at about 5:45 p.m. on Friday, 14 January 2022, for the purposes of engaging s 133C(3), the head of power relied upon under s 116 was the ground specified in par (1)(e) of that provision, being the health of the Australian community. Further, as I understood it, the respondent also considered it to be in the public interest to cancel his visa, by reason of a perceived need to quell the risk, as it seemed to be said, of so-called ‘anti-vaxers’, deploying the applicant’s presence in Australia as some sort of vehicle upon which to rally in support of their cause. Without the benefit of argument it was more difficult to locate the source of this discrete head of power in s 116.

It is not necessary to examine in detail the nature of ministerial satisfaction or to finally determine the relative merits of the parties’ competing contentions whether a ground exists under s 116 of the Migration Act 1958 for the respondent to cancel the applicant’s visa, or whether the criterion for ministerial satisfaction whether it would be in the public interest for the respondent to cancel the applicant’s visa pursuant to s 133C(3). That is because in my view, it is sufficient to record my conclusion I am satisfied that the applicant has demonstrated there is a reasonably arguable case; that is, there is a serious question to be tried whether a ground for cancellation existed under s 116 to do so. Stated in other terms, if no such ground existed, the primary and essential criterion for engagement of the personal power to cancel a visa as expressed in par 133C(3)(a) might not exist. In that event, the discretionary power conferred by s 133C to cancel the visa would not be enlivened. That is because ministerial satisfaction respecting the matters in each limb of s 133C(3)(a) and (b) is essential to the existence of the Minister’s statutory discretionary personal power to consider cancellation. Further, if facts and circumstances capable of supporting the precondition to par 133C(3)(a) were not demonstrated, no occasion would arise to address whether the secondary, and equally, essential, criterion expressed in par 133C(3)(b) was satisfied. In each case, the nature of the satisfaction of the Minister that is necessary and sufficient to engage the power in s 133C(3) “is a state of mind formed reasonably and on a correct understanding and application of the applicable law.”

Ground 3

It cannot be overlooked that the rights which inhere in a visa are of real and substantial value. The destruction of such rights, as by cancellation, are to be considered from that perspective. Upon the foregoing principles, it is appropriate to grant relief in this case. It is then necessary to address the relief that is appropriate to be granted in the case.

It is also desirable that the proceeding be transferred to the Federal Court of Australia. It is necessary to explain, however briefly, why this conclusion has been reached. As stated above, limited jurisdiction is conferred on this court to grant relief by way of judicial review where an administrative decision made under the Migration Act 1958 is shown to be tainted by jurisdictional error. It will not do so unless the error is shown to be material in the requisite sense.

By s 137(1) of the Federal Circuit and Family Court of Australia Act 2021, jurisdiction of Div. 2 of this court is to be exercised by the court constituted by a single Judge. When called upon to exercise jurisdiction, the Judge may give directions under s 192(1). Included in the directions that the court is empowered to give in a civil proceeding is a direction requiring things to be done: see par 192(2)(a). Relatedly, s 153(1) confers a discretionary and qualified power in the court to transfer a proceeding to the Federal Court of Australia.

While the court may transfer the proceeding of its own initiative, a non-exhaustive list of matters that the court must have regard to are detailed s 153(3). An order for transfer is qualified by s 153(3) inasmuch as the order is not operative and does not take effect until it has been confirmed pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth). Section 32AD addresses matters relevant to the exercise of discretion to confirm a transfer.

An ancillary order was required directing that the parties forthwith do all things and take all steps were reasonably necessary to make application seeking confirmation of the transfer of the proceeding pursuant to s 32AD(1) of the Federal Court of Australia Act 1976. Should the Federal Court of Australia determine not to confirm the transfer of the proceeding, it will be remitted immediately to this court for hearing and determination.

I have concluded that it is in the interests of the administration of justice to make an order for the transfer of the proceeding. The objects and requirements stated in ss 5(a), 139(d) and 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), are: to ensure that justice is delivered by federal courts effectively and efficiently; to ensure all matters in controversy between the parties may be completely and finally determined (and, in particular, that all multiplicity of proceedings concerning such matters may be avoided). Overarching purposes of civil practice and procedure provisions of that Act are to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible including by the efficient use of the judicial and administrative resources available in a timely manner.

In my view it is consistent with the furtherance of those objects, including to minimise the application of further resources and incurring of significant costs to each of the parties (including appeals), for the matter to be transferred without delay.

Notwithstanding the jurisdiction conferred by s 476 the Migration Act 1958 upon this court to hear and determine proceedings by way of judicial review, an additional power conferred by s 26(1) of the Federal Court of Australia Act 1976 (Cth), allows for the referral to a Full Court of questions that may be reserved for its consideration.

It does not appear, and having regard to the divisional nature of this court, I would not expect to locate, any correlative provision in the Federal Circuit and Family Court of Australia Act 2021. To say as much is only to underline the importance of achieving the object that justice is delivered by federal courts effectively and efficiently and this should occur in a manner that secures the just resolution of the parties’ disputes according to law, as quickly, inexpensively and efficiently as possible and in a timely manner.

Further, the court was satisfied it was in the interests of the administration of justice that, pending the order for the transfer of the proceeding being confirmed, and necessary, within the meaning of s 153(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), for these orders to be made.

Conclusion:-

1) The applicant have leave, now for then, to make oral application for judicial review of the decision of the respondent made purportedly pursuant to s 133C(3) of the Migration Act 1958 (Cth) to cancel his Temporary Activity (Subclass 408) visa.

2) Pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding be transferred to the Federal Court of Australia.

3) The parties and each of them forthwith do all things and take all steps as may be reasonably necessary to make application seeking confirmation of the transfer of the proceeding to the Federal Court of Australia pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth).

4) The costs of and incidental to this application be reserved.

 

Added a post 

DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 (17 December 2021)

Intro:-

This is an appeal from orders made by the primary judge in dismissing an application brought by the appellant, DCR19, to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), not to revoke a decision made by another delegate of the Minister to cancel the appellant’s resolution of status visa.

Facts:-

The appellant is a citizen of the Democratic Republic of the Congo (Congo) who arrived in Australia in 2002, aged 30.

On 13 March 2002, the appellant made an application for a protection visa as a member of the family unit of his then wife. The appellant made no claims for protection of his own.

On 28 August 2002, the appellant was granted a Temporary Protection (Class XA) (subclass 785) visa.

On 24 February 2003, the appellant’s then wife applied for a further protection visa. On 26 May 2005, the appellant was granted a temporary protection visa on the basis that he was a member of his then wife’s family unit. In each case the appellant made no separate claims in respect of himself as a distinct person, who should be owed protection.

On 26 May 2008, after separating from his then wife, the appellant applied for a permanent protection visa. In his application form, the appellant claimed that he left the Congo because his “wife’s family was politically active and consequently were persecuted by the Govt” and “as a result of the marriage, [he] was also persecuted”. The appellant also claimed that, if he was returned to the Congo, he would “still be targeted as everyone knew [his] connection with [his wife’s father] ... and [his] brother in law”.

On 28 August 2008, a delegate of the Minister made a decision to grant the appellant a Resolution of Status visa. It was not a criterion for the grant of that visa that the appellant be a person to whom Australia owes protection obligations.

Between 2013 and 2018, the appellant was convicted of various crimes. Relevantly, on 17 January 2013, he was convicted of knowingly dealing with the proceeds of crime and was sentenced to a term of imprisonment of three years and three months.

On 19 March 2018, the appellant was convicted of knowingly producing a false or misleading document and was sentenced to a term of 12 months’ imprisonment.

On 28 May 2018, the appellant’s resolution of status visa was cancelled by a delegate of the Minister (cancellation decision) under s 501(3A) of the Act, as the appellant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment.

The appellant sought revocation of the cancellation decision by making representations to the Minister in accordance with an invitation that had been issued to him on 28 May 2018. Relevantly, the appellant’s representations in support of revocation of the cancellation decision made no reference to Australia owing any non-refoulement obligations in respect of him.

On 21 February 2019, a delegate of the Minister made a decision pursuant to s 501CA(4)(b) of the Act to refuse to revoke the cancellation decision (non-revocation decision).

Review was sought of the non-revocation decision on 22 February 2019. In the course of that review, on 26 April 2019, the appellant, for the first time since the making of the cancellation decision, claimed in an affidavit that he would be persecuted if he were returned to the Congo. His former spouse had also made an affidavit to that effect on the same date. Written submissions were also made by the appellant on the day before the Tribunal hearing in which the issue was raised.

A hearing was held before the Tribunal on 2 and 3 May 2019. In a decision made on 16 May 2019, the Tribunal affirmed the non-revocation decision. The Tribunal’s reasons for decision were comprehensive and were summarised by the primary judge at [28]-[41] of the Primary Judgement.

Tribunal's decision

The Tribunal went on to summarise the appellant’s claims and the parties’ submissions before finding that it was not satisfied that the appellant had “any subjective fear of persecution in the [Congo]”, noting that “in his response to the cancellation of his visa, [he] did not mention anything about fearing persecution in the [Congo]”. The Tribunal observed that the first time that any non-refoulement claim was advanced was in an affidavit made in the course of the review in April 2019 following the lodgement by the Minister of his statement of facts, issues and contentions. The Tribunal found that the making of that claim in those circumstances evinced an absence of “a subjective fear of persecution”.

Further, the Tribunal noted that the appellant had been separated from his wife since 2005, had been outside of the Congo for 16 years and did not share a surname with his wife or anybody in her family: Tribunal reasons at [282]. In those circumstances, the Tribunal found that it was “unlikely that any potential persecutors would remember or recognise the [appellant] or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago. The Tribunal also found that there was no evidence to suggest that anybody in the Congo was “seeking to harm or threaten” the appellant.

The Tribunal returned to the topic of the failure by the appellant to make any representations about non-refoulement to the Minister. It said that the absence of a subjective fear of harm could be considered in determining whether there was an objective real chance that he would face serious harm or a real risk that he will face significant harm if returned to the Congo. The Tribunal observed that the failure to make representations about non-refoulement to the Minister, together with the absence in the appellant’s former wife’s statement of any discussion of the harm that he might suffer at the hands of others in the Congo, “support[ed] the view that [she] did not consider that the [appellant] will suffer harm” if he were returned to that country.

The Tribunal considered that it was “likely” that the appellant would not be found to meet the criteria for the grant of a protection visa and that his removal from Australia “will not result in any breach of Australia’s international non-refoulement obligations”. The Tribunal correctly observed that any claims made in support of a protection visa application would be determined by another decision-maker, who would not be bound by the Tribunal’s findings as to Australia’s international non-refoulement obligations. Although the Tribunal considered that there was “only a very remote possibility” that Australia would breach its international obligations, nonetheless it found that “that outcome [wa]s possible”. Accordingly, the Tribunal gave this factor “slight weight” in favour of revocation of the cancellation decision.

The Tribunal also made findings as to the harm or hardship that the appellant might suffer if he were returned to the Congo: . It found that there was a “possibility” that the appellant would be harmed if he were returned to the Congo, but that that possibility was “very unlikely”.

The foregoing considerations were weighed against factors that militated against revocation of the cancellation decision. Having weighed those factors, the Tribunal concluded that there was not another reason why the cancellation decision should be revoked.

Issues:-

1) whether the Tribunal conclusion that the appellant did not have a subjective fear of harm or persecution, if returned to the Congo was vitiated by jurisdictional error, in that the Tribunal did not afford procedural fairness to the appellant as a result of the Tribunal’s approach in considering the appellant’s evidence.

2) whether it was legally unreasonable for Tribunal not to have inquired or adjourned hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so.

3) whether the Tribunal erred by failing to consider, or to give real and genuine consideration and intellectual attention to, the impact of the Appellant's claims on Australia's international non-refoulement obligations and/or the implications of the Tribunal's finding that there was a possibility that removal of the Appellant could result in Australia breaching its international non-refoulement obligations.

Consideration:-

Ground 1 - procedural fairness ground

The Tribunal is not required to invite comment from an applicant as to their thought process on the way to making a decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Similarly, the Tribunal is not required to advise an applicant of the possibility of drawing an adverse conclusion that would be open on the material supplied by, or known to, the applicant or which otherwise derives from an obvious and natural evaluation of that material.

The Tribunal’s role was to consider the evidence and submissions that the appellant provided in support of his application for review, and then to determine whether or not his claims were made out. The Tribunal made findings that the appellant did not have a subjective fear of persecution if returned to the Congo, relevantly, for the reason that the appellant had only raised this matter shortly prior to the Tribunal hearing on 3 May 2019.

The appellant chose not to make any representations to the Minister about Australia’s non-refoulement obligations, to the extent that any obligations were owed to him. The first time that the appellant raised the issue of non-refoulement was in his affidavit dated 26 April 2019 (2019 affidavit), approximately one week prior to the appellant’s hearing before the Tribunal. The appellant’s evidence with respect to his fear of harm was brief, and was described in the following way of the Primary Judgement:-

"DCR19 only raised the claim that he feared persecution in the Congo after DCR19 had received the Minister's written contentions and once his solicitor became involved with the application before the Tribunal, a week before the hearing and after a substantial number of the 84 day period that the Tribunal had to make a decision."

The appellant was alive to the fact that he had not, prior to his 2019 affidavit, raised a claim to presently fear harm if returned to the Congo in response to the notification of the mandatory cancellation of his visa. The appellant acknowledged that he “did not provide detail of such fear” at [2] of his 2019 affidavit:

"I have grave concern about returning to the Democratic Republic of the Congo (DRC) based upon my previous refugee claims. The only reason I did not provide detail of such fear is that the form provided to me (Personal Circumstances Form) did not have any questions that raised this issue. If it did, I most certainly would have provided such detail."

Implicit in the above statement is an admission that there had been delay by the appellant in raising that claim. In doing so, the appellant put the fact of delay in issue. Having done so, the appellant cannot now complain that an adverse conclusion was reached by the Tribunal after having regard to that delay. That conclusion was open to the Tribunal on the known material.

Prior to the time that the non-revocation decision was made, the appellant was provided with an opportunity to outline any concerns or fears that he held in relation to what could happen to him if returned back to the Congo. The appellant in his "Response to Notice of Intention to Consider Visa Cancellation under s501(2) of the Migration Act 1958 or Notice of Mandatory Visa Cancellation under s501(3A) of the Migration Act 1958" (personal circumstances form), failed to provide an answer to that question on page 10, which reads:-

"Do you have any concerns or fears about what would happen to you on return to your country of citizenship?"

That question, which her Honour the primary judge described at [70] of the primary judgment, as “plainly worded” was left unanswered, and there was otherwise nothing in the request for revocation that suggested that the appellant feared persecution or harm of any kind if returned to the Congo.

What is notable is that the appellant, in a handwritten letter dated 17 June 2018, which was attached to the personal circumstances form, made the following representations:

"I have no close ties to anybody in the Congo as my family and life is now here in Australia. I will not have a job or any place to live if I were deported."

It is reasonable to take the view that, if the appellant did have a subjective fear of harm, if he were returned to the Congo, that he would have described or raised these fears within the personal circumstances form, like he did with the above representation.

Contrary to the appellant’s claim that he was denied procedural fairness as a result of the Tribunal failing to inquire or to adjourn the hearing to enable further material to be put into evidence in respect of non-refoulement, the appellant was (or ought reasonably to have been) on notice of that issue and in fact had the opportunity to put forward submissions on it. It was, in turn, open to the Tribunal to take into account not only the appellant’s delay in raising his claims to fear harm but also the explanation proffered for that delay, and to consider such matters when considering issues relating to non-refoulement.

For these reasons, the appellant was not denied procedural fairness and this ground of appeal fails

Grounds 2 - unreasonableness ground

The unreasonableness grounds turn on the proper interpretation of s 500(6H) of the Act and the determination of the appellant’s contention that the Tribunal erred in its understanding and application of that provision.

Section 500(6H) of the Act provides:

500 Review of decision

...

(6H) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

The prohibition contained in s 500(6H) of the Act is in mandatory terms. It only operates if a review applicant can show that “the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”. The purpose of that prohibition is to ensure the expeditious determination of applications for review under s 500 of the Act, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case.

Consistent with that purpose, the section does not preclude the Tribunal from considering information which is not presented by, or on behalf of an applicant, including information that arises from cross-examination or answers given in response to questions put by the Tribunal. Those exceptions do not, however, diminish the force of that prohibition. Nor do they permit s 500(6H) to be approached in a manner that would render it inutile or de minimis.

The Tribunal, in the course of the hearing, asked the appellant a question about the persecution that he feared at the hands of the government on account of his association with a prominent family member, namely his brother-in-law. The following was put to the appellant in cross-examination:-

"It has been suggested that in Africa if you’re a family member of or you have the involvement with those kinds of people, that you’re persecuted by the government; is that right?---Yes."

The Tribunal member then asked the appellant the following question:-

"But that doesn’t seem to extend to any of your family members?---Yes.

So none of your family members have been harmed because of your association of your wife’s association with - - -?---No, but this – they live in the same – no, live in this place. I leave them because they no want people to go to Thailand ...."

It is clear from the above extract that the Tribunal put the appellant on notice that there was doubt as to the force of the appellant’s claim for persecution on the basis of his association with an antigovernment family member or anti-Kabila government family member, because none of the appellant’s family members in the Congo have been harmed.

In the present case the appellant was not precluded from calling any witnesses, nor was he prevented from giving oral evidence on the aspects of his claims relating to his fear of persecution if returned to the Congo. Rather, the prohibition in s 500(6H) of the Act applied only to prevent evidence that was sought to be adduced to which the Tribunal could have no regard. As Bromberg J recognised in DOM19 at [11], that is a permissible application of s 500(6H) of the Act.

In terms of the alleged unreasonableness, or illogicality components of the unreasonableness grounds, the Appellant’s contentions misunderstand the duty of the Tribunal. The Tribunal is not required to construct a case for a review applicant: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ, and nor is it under any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. Rather, it is for a review applicant to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of relevant statutory requirements: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] per Davies, Derrington and Colvin JJ.

Contrary to the appellant’s contentions, the mere fact that the Tribunal has at its disposal the power to elicit for itself information which an applicant cannot themselves put forward by force of s 500(6H) of the Act does not render it legally unreasonable (or otherwise illogical or erroneous) for the Tribunal not to exercise that power. Were that not so, the Tribunal could conceivably be required to seek to bolster a review applicant’s evidence in every case before it, regardless of the content of the written material put before it by an applicant, thereby rendering s 500(6H) of the Act (and s 500(6J)) inutile. The comments made by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46 (DUA16), cannot in this regard be taken as a statement of general principle; they were uttered (as the High Court itself noted) in respect of a case the circumstances of which “[we]re extreme”. Regard needs only to be had to the unique facts of DUA16 to appreciate that the appellant’s reliance on it is misplaced. Nor did the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) suggest that the ability of the Tribunal to ask questions of a review applicant altered its essential function or the review process, or otherwise gave rise to a general duty to inquire.

It should also be noted that the appellant’s counsel agreed that it would undermine the purpose evident in s 500(6H) of the Act for the Tribunal simply to ask the questions itself to overcome the effect of the statutory prohibition. In those circumstances, and absent the appellant establishing that the Tribunal misunderstood or misapplied s 500(6H) of the Act (which, for the reasons given above, it did not do), it was not legally unreasonable for the Tribunal not to have exercised its discretion to obtain information from the appellant to “fill in” the evidentiary gap that he had left. In this connection, it is not irrelevant to the question of whether the Tribunal acted unreasonably that the appellant was represented during the merits review process. The appellant could have had his former legal representative prepare a detailed statement on his behalf that canvassed his claims to invoke Australia’s international non-refoulement obligations and identified the harm that he feared, whether and why that fear was current, from whom he feared harm and what he believed might happen to him if he were to be returned to the Congo. That however, was not done.

The unreasonableness grounds will fail.

Ground 3 – failure to consider grounds

The appellant contends, in the failure to consider grounds that:

(i) The primary judge erred in failing to finding that the Tribunal committed jurisdictional error by failing to consider claims made by the appellant’s former wife in 2002 and 2008, that he may face persecution if returned to the Congo.

(ii) The Tribunal erred by failing to give proper consideration to the appellant’s claims of non-refoulement.

The failure to consider grounds fail for the reasons that follow.

In deciding whether there existed another reason to revoke the decision to cancel the appellant’s visa, the Tribunal was under no obligation to have regard to the appellant’s claims to be a person in respect of whom Australia owes non-refoulement obligations. Accordingly, any error by the Tribunal in its treatment of non-refoulement, such as conflating the criteria for granting a protection visa with the question of whether a person engages Australia’s international non-refoulement obligations (which the Minister does not concede was made), was within its jurisdiction.

As to ground 5(i), no error has been shown by the appellant in the primary judge’s findings, at [81]-[82], that there was no failure by the Tribunal to consider the appellant’s 2002 and 2008 protection visa applications. The Tribunal’s reasons make plain that it had regard to the evidence put forward by the appellant in support of his claim to fear harm if returned to the Congo. The Tribunal expressly referred to the previous protection visa applications made by the appellant and his ex-wife, including in its dispositive findings at [276] of its reasons:-

"... the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa."

In the circumstances, it can be inferred that the absence of any detailed reference to the claims that the appellant made in 2002 and 2008 is that they were not critical to the making of the Tribunal’s findings on material questions of fact.

Those circumstances included that neither the interview conducted in 2002, nor the protection visa application the appellant made in 2008, had any bearing upon the appellant’s fear of harm as at 2019. On each occasion the appellant’s claims were in general terms. Further, the appellant did not state in his 2002 interview that he feared harm if returned to the Congo. Rather, the appellant stated that no immediate threats had been made to himself or his wife, and that he had not kept up-to-date with the circumstances of his wife’s family. This is apparent from the transcript of the appellant’s airport entry interview:

Q: Is your brother in law under threat

A: I would have to check that with my wife.

Q: Why do you not know if he is under threat?

A: I haven't kept up to date about my brother in laws situation

Q: Have you or your wife received any immediate threats

A: No

Further, the 2008 application had been made without the appellant’s knowledge.

It is clear that the Tribunal undertook a consideration of what a contravention of Australia’s non-refoulement obligations would entail. The Tribunal did not equivocate on this. This was not a case where the Tribunal concluded that the appellant was a person in respect of whom non-refoulement obligations were owed, but found that the evidence before it was such that it could not properly assess the degree and nature of the harm that he might encounter in his home country. Rather, the appellant was found not to be a person in respect of whom Australia owes such obligations because the chance of his being harmed was “very remote” at [289] of the Tribunal’s reasons. Nevertheless, to account for that very remote chance of contravention by Australia of its international obligations, the Tribunal determined to give non-refoulement “slight weight in favour of revocation”: Tribunal’s reasons at [290].

The appellant’s contention that the Tribunal failed to properly “evaluate the information available to [it] about the circumstances in [the appellant’s] place of return”, “to determine what, as a matter of fact, those circumstances meant for [the appellant] on his return” and then to incorporate those findings into the resulting weighing exercise is not correct: DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2012) 278 FCR 529. Moreover the appellant’s reliance on Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Ali), that this failure was compounded, or caused, by a broader failure on the part of the Tribunal (equivalent to that in Ali) to recognise the distinction between the appellant’s potential eligibility for a protection visa and whether he was owed non-refoulement obligations is misplaced for the reasons that follow.

Unlike in Ali this was not a case where the Tribunal hived off non-refoulement to a later decision-making process.

Unlike in Ali, the Tribunal did not fail to appreciate the differences between the role of non-refoulement in the exercise of the discretionary power in s 501CA(4) and its place in the protection visa regime.

Unlike in Ali, the Tribunal did not conflate Australia’s international non-refoulement obligations with the criteria for the granting of a protection visa. On the contrary, the Tribunal was careful to appreciate the differences between Australia’s obligations under international law and the criteria for the grant of a protection visa.The Tribunal understood that “it is quite possible that a person may not meet the criteria for the grant of a [p]rotection visa notwithstanding that Australia may owe non-refoulement obligations in respect of the person”. No such statements appear in Ali, FAK19 or DGI19. Read in the context of its discussion of Australia’s international obligations, the references to ss 36(2)(a) and (aa) of the Act at Tribunal reasons [278]-[279] and [287] were merely shorthand for Australia’s international obligations under, respectively, the Refugees Convention and other international human rights instruments (such as the International Covenant on Civil and Political Rights and the Convention Against Torture) as enacted in municipal law. Such reasoning was entirely orthodox, as Australia’s unenacted obligations under international law “are not mandatory relevant considerations attracting judicial review for jurisdictional error”; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101] per McHugh and Gummow JJ; cited by Nettle, Gordon and Edelman JJ in Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 (Applicant S270/2019) at [35]. As Keane J observed in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, in a passage cited by the majority in Applicant S270/2019 [2020] HCA 32; (2020) 94 ALJR 897 at [35] per Nettle, Gordon and Edelman JJ:-

"[i]n point of constitutional principle, an international treaty made by the Executive Government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament."

In particular, the Tribunal did not err in its reasons. All that the Tribunal there said was that the failure by the appellant to meet the criteria in ss 36(2)(a) and (aa) meant that Australia would not breach its international non-refoulement obligations in the event that he is removed from Australia. That was not to equate non-refoulement with the criteria for the grant of a protection visa. Rather it was to recognise that the international instruments referred to in the previous paragraph are a source of rights and obligations under domestic law to the extent that ss 36(2)(a) and (aa) incorporate Australia’s obligations under those instruments. That the Tribunal did not conflate the two processes is reinforced not only by the absence of any reference in its dispositive findings to ss 5H-5LA or ss 36(1A)-(1C) and (2A)-(7) of the Act but also its acknowledgment, at [288] of its reasons, that a decision-maker on any application for a protection visa would not be bound by the findings made for the purpose of exercising the power in s 501CA(4)."

It is difficult to see how the Tribunal was required to have regard, in the appellant’s submission, to the impact (if any) of a contravention of Australia’s international non-refoulement obligations on its “international reputation and standing”, when, first, it concluded that the appellant was not owed such obligations. Secondly, the executive dimension of non-refoulement never featured in the appellant’s submissions to the Tribunal; and thirdly, the slight chance that such obligations might be owed was taken into account in any event. Particularly where the point was never taken by the appellant, the exercise of the power in s 501CA(4) did not require a decision-maker to have regard to the damage to Australia’s international standing or reputation in the event that it contravened its international non-refoulement obligations.

For these reasons, the failure to consider grounds will fail.

Disposition

The appeal will be dismissed.

The appellant will pay the first respondent's costs of the appeal on a lump sum basis to be fixed by a Registrar of this Court in the absence of agreement between the parties.

Added a post 

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 (8 December 2021)

Intro:-

The Minister appeals against the decision of the Full Federal Court that the decision not to cancel the respondent's visa, pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was vitiated by jurisdictional error

Facts:-

The respondent was born in American Samoa, was largely raised in the Independent State of Samoa ("Samoa"), and is a citizen of New Zealand. At the age of 14 he arrived in Australia. In 2007, he was granted a Class TY Subclass 444 Special Category (Temporary) visa, which he held until 2016. Following his conviction for, amongst other crimes, seriously assaulting his partner, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("the Act"). Subsequently, the appellant ("the Minister") decided that there was not "another reason" to revoke that cancellation decision for the purposes of s 501CA(4)(b)(ii). The respondent sought judicial review of that decision in the Federal Court of Australia. Initially, his application was dismissed, but on appeal[2] the Minister's decision was set aside.

For the purposes of making representations about whether there was "another reason" to revoke the visa cancellation decision, the respondent asserted, amongst other contentions, that there was a "real prospect" that he and his partner and young child, unless the visa cancellation decision were to be revoked, would go to American Samoa, where they would face "substantial impediments". As an example of these "substantial impediments", the respondent submitted that his partner and child would be "unfamiliar with the culture and society in American Samoa", and that his child would "have limited understanding of her father's native language and as such any schooling and advancement in life will be materially affected by the language and cultural barrier that will be placed upon her". He also contended that as "a family unit" they would likely be "homeless, with no job, social ties, welfare or healthcare services in American Samoa". He subsequently diluted this claim and submitted that his partner and child's "prospects at life" would be "limited, with little prospects of employment, denial of a first-class education for [his] daughter, problematic healthcare and no social welfare" (emphasis added). None of these contentions were supported by any evidence.

In his statement of reasons for decision under s 501CA of the Act, the Minister addressed these concerns, and decided that if the child were to relocate to American Samoa or Samoa she would be "significantly impacted". In reaching this conclusion, the Minister largely accepted the respondent's assertions, but made two qualifying observations which were the subject of successful challenge below. The first was as follows:-

"I find that the whole family, may, at least initially, experience problems relating to employment, income, housing and lack of family or social support and this would negatively impact on [the respondent's child]. English, however, is widely spoken in American Samoa and Samoa and healthcare, education and some welfare support are available in either location."

Notably, no specific claim was made by the respondent about the extent to which English was spoken in either American Samoa or Samoa.

The second was in these terms:-

"I accept that the services available in American Samoa and Samoa may not be of the same standard as those available in Australia, and/or may be more expensive to access, and there may be differences in services between American Samoa and Samoa."

In relation to that observation, the Minister remarked that the respondent's family would have "equal access to welfare, healthcare and educational services as do American Samoans and Samoans in a similar position".

The respondent contended that each observation, about the speaking of English and the availability of services in American Samoa and Samoa, was made without any evidentiary support. In that respect, it was common ground that there was no objective evidentiary material before the Minister capable of supporting either finding. This led to the majority's finding that the Minister wrongly afforded less weight to the child's interests, and "so affected a critical aspect of the Minister's reasoning".

It should be noted that the respondent has never suggested that the Minister's observations were in fact incorrect. Even though it was open to the respondent to show this, assuming each observation in fact to be mistaken, he has chosen not to do so. On appeal to this Court, senior counsel for the respondent strikingly submitted that even if the two impugned observations were true, the Minister had nonetheless erred because those findings were made without the support of "some probative material".

Tellingly, the respondent did not attack equivalent findings made about conditions in New Zealand. For example, the Minister said in his reasons:-

"In relation to New Zealand, I find that [the respondent] and his family will have access to similar social services and healthcare support to those enjoyed by citizens of New Zealand. I find that these services are of a similar level to those available in Australia and that New Zealand is culturally and linguistically similar to Australia."

In light of the foregoing, the respondent has nonetheless indicated that if he is to be deported, he would choose to move to American Samoa, even though, it would seem, he accepts that the standards of social services in New Zealand are much higher than those, as he contends, that are available in American Samoa. He then relies precisely on that lack of services as a reason for the revocation of the visa cancellation decision.

Ultimately, each impugned finding, together with other findings that have not been challenged, led the Minister to determine that it was in the best interests of the respondent's child that the cancellation decision be revoked, and that the respondent's removal to American Samoa or Samoa would result in "significant adjustments and hardship" for him and his family. In other words, the Minister accepted the substance of the claims made. However, the Minister weighed these favourable factors against the risk of harm to the Australian community if the respondent were not removed. The Minister considered that this risk was "unacceptable" and that it "outweighed" the factors favouring revocation of the cancellation decision. No attack has been made on the manner in which the Minister weighed these various matters in not reaching a state of satisfaction that there was "another reason" for revocation of the cancellation decision.

Issue:-

1) whether the Minister is obliged to make actual findings of fact as an adjudication of all material claims made which included bare assertions about conditions in American Samoa?

2) in the absence of evidence or material, is there anything in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or accumulated specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is "another reason" for revocation?

3) if it was permissible to rely on such knowledge, the observations about the widespread use of English and the state of health and welfare services in American Samoa and Samoa, as a matter of procedural fairness, should have been disclosed to the respondent to permit him to make submissions about those matters.

Consideration:-

Ground 1

The legal capacity conferred on the Minister by s 501CA of the Act to revoke a decision to cancel a visa is premised upon the prior exercise of the power of cancellation conferred by s 501(3A). Importantly, once the conditions of s 501(3A) are fulfilled, the power of cancellation is mandatory; the Minister must cancel the visa. In contrast, the power of revocation is broad. Upon receiving representations about revocation in accordance with s 501CA(4), the Minister must determine whether to be satisfied that the person passes the character test (as defined by s 501(6)) or whether there is "another reason why the original decision should be revoked".

The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is "another reason" is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non‑refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials "do not include, or the circumstances do not suggest, a non-refoulement claim". The power must otherwise be exercised reasonably and in good faith.

No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the "relevant information" given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is "another reason" why the cancellation decision should be revoked. Deciding whether or not to be satisfied that "another reason" exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.

If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that "another reason" exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence[. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.

If the Minister is not satisfied that another reason for revocation exists, s 501G(1) of the Act obliges the Minister to give the applicant a written notice setting out, amongst other things, the decision, specifying the provision – and its effect – under which the decision was made, and the reasons for the decision. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme, a majority of this Court said that the minimum obligation under s 501G was to express the "essential ground or grounds"[16] for the conclusion reached by the Minister. Importantly, a failure to comply with s 501G does not invalidate the decision made under s 501CA. For the purpose of giving "reasons", the Minister is also obliged, pursuant to s 25D of the Acts Interpretation Act 1901 (Cth), to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The respondent here did not suggest that s 25D had not been complied with.

Ground 2

If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known. By "no evidence" this has traditionally meant "not a skerrick of evidence".

There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is "another reason" for revocation. Indeed, there are simply no limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge. In the circumstances of the present case, where no evidence or other material has been identified in support of the Minister's findings about the speaking of English and the availability of services in American Samoa and Samoa, it can be assumed that the findings proceeded from the Minister's personal or specialised knowledge or were matters commonly known.

In exercising the power conferred by s 501CA(4) of the Act, the Minister is free to adopt the accumulated knowledge of the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Department"). Indeed, it is now well established that the Minister may adopt as the Minister's own written reasons a draft prepared by a departmental officer, provided that such reasons actually reflect the reasons why the Minister had reached her or his decision.

There is no necessary dividing line, for the purposes of s 501CA of the Act, between the use of personal or specialised knowledge, or the use of that which is commonly known, as against the need for some evidence or other material to support a finding which the Minister may make. Where the Minister wishes to make a finding in support of a conclusion that she or he is not satisfied that there is "another reason" for revocation, and the Minister has personal or specialised knowledge which supports that finding, the Minister may use that knowledge. The Minister may also supplement or support such a finding with evidence or other material. Where the finding is not within such personal or specialised knowledge, and is not a matter commonly known, it will need to be supported by some evidence or other material. It cannot be asserted without any basis at all. Different considerations might arise if the finding in question was material to the process of reasoning and was incorrect. But that has not been suggested here.

It would, one would hope, be a rare case where a fact is asserted in support of a reasoned outcome under s 501CA of the Act which has no basis for its existence. However, there have been exceptions in extreme and rare cases where the Minister has made particular or personal findings about an applicant, which could not have been the subject of any pre‑existing personal or specialised knowledge (or common knowledge), and were not otherwise supported in any way. Examples of this have included findings made in the absence of any evidence or supporting material about the danger an applicant might pose in the future to the Australian community, and about the type of hardship an applicant might personally suffer if deported.

It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected.

The decision of the Full Court

Because it was common ground that there was no evidence before the Minister concerning the speaking of English or the availability of health and welfare support in American Samoa or Samoa, the basis upon which the Minister had reached his conclusions on those matters assumed importance below. The majority decided that the evidence did not support a finding that the Minister used his own personal knowledge. That was so for four expressed reasons. First, the Minister's own reasons did not expressly state that he was relying on his personal knowledge. Secondly, the matters were said not to be commonly known, which supported an inference that the basis for the two findings could not have been drawn from personal knowledge. Thirdly, it could not be inferred that the Minister had the required personal knowledge on the basis that he was the Minister charged with the responsibility of administering the Act. Fourthly, there was no evidence that the author of the Department's draft reasons had "any appreciation" of the Minister's prior knowledge.

As the majority concluded that it was an implied condition for the exercise of the power conferred by s 501CA(4) of the Act that the Minister's state of satisfaction "be formed on the basis of factual findings that are open to be made on the evidentiary materials", it was said that this condition had not been complied with. This principle was said by senior counsel for the respondent to be supported by the reasons of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. In the result, the majority determined that the impugned findings were "critical" to the Minister's reasoning process, and so it followed that the Minister had made a jurisdictional error.

In contrast, Besanko J found that both matters were within the Minister's personal knowledge. His Honour also found that the respondent had made no relevant claim about the extent to which English is spoken in American Samoa and Samoa, and that this impugned finding had not, in any event, been shown to be "wrong". Moreover, and critically, both matters were said to support the ultimate finding, namely that "removal to Samoa or American Samoa [would] 'involve significant adjustments and hardship for the [respondent] and his family'", a matter which favoured the respondent. It followed that the Minister had not erred.

The Minister's personal knowledge

With respect, Besanko J was correct. In the circumstances of this case, the obvious inference is that the two impugned findings were the product of the Minister's personal or specialised knowledge. Senior counsel for the respondent expressly disavowed any suggestion that the Minister had merely made things up.

Again, with respect, the four reasons relied upon by the majority below for concluding that each observation was not made using the Minister's personal or specialised knowledge should not be accepted. Given the store of knowledge the Minister will have built up over many years, from dealing with individuals from so many countries and territories, the source of such specific observations about conditions in American Samoa and Samoa could only have been from the Minister's experience. In that respect, to reiterate, it had not been shown that either observation was incorrect.

It follows that the majority's observation that the Minister's satisfaction or non-satisfaction for the purposes of s 501CA(4) of the Act must be formed on the basis of factual findings that are open to be made on the evidentiary materials is not, with great respect, entirely correct. First, and as already mentioned, the Minister is not prohibited from using the accumulated knowledge of the Department. Secondly, representations may be received which are no more than bare assertions about a course of future events. The Minister may simply not be persuaded that such assertions can constitute "another reason" for revocation. Such a conclusion does not require the Minister to make any factual findings. Finally, because of the applicable statutory regime, the respondent's particular deployment of Eshetu was, with respect, misconceived.

It also follows that the Minister did not err in law when making the two impugned findings.

Ground 3

It was the respondent who made claims about how he and his family would be exposed to adverse conditions if his family were to follow him to American Samoa or Samoa. He was given the opportunity to make submissions about such issues and to support his claims with evidence. In the end, he relied only upon bare assertions. By his reasons, the Minister gave his response to that claim, which, in substance, was no more than to reject it. He was under no obligation to disclose his disagreement and give the respondent yet another opportunity to make claims about the likely conditions in American Samoa or Samoa. This is not a case where the Minister relied upon information or matters that could not have been knowable by the respondent[. Nor is there any equivalent here to ss 424AA or 424A of the Act for the purposes of reaching a state of satisfaction under s 501CA(4). Even if such a provision existed, it would not oblige the Minister to give "advance written notice" of the reasons on this issue.

Disposition

The appeal should be allowed. The Minister should pay the reasonable costs of the respondent in this Court.

Added a post 

Minister Pulford has announced on Saturday that the Victorian Commercial Tenancy Relief Scheme (CTRS) which was to cease on 15 January 2022 will be extended until 15 March 2022.  

There will be some changes to the scheme and its operation will be retrospective commencing Sunday 16 January 2022.  

Small Business Victoria will work with stakeholders to develop the regulations to support this announcement as they did with the previous versions. It is expected that the new regulations will be in place in a couple of weeks.

Some key features of the extended scheme to note:

  • The eligible turnover threshold has been reduced to $10M or less per annum
  • It will be retrospective, commencing on 16 January 2022 and continuing until 15 March 2022

The policy intent of this is that for tenants who are entitled to and accessing rent relief under the current CTRS regulations, and who remain eligible under the new CTRS regulations, there will be no gap in coverage of the scheme between when the current regulations end and the new regulations are in place.  The practical impact of this would be that their entitlement to rent relief continues unbroken and the eviction and rent increase prohibitions remain in place.

  • We will continue to provide information and free dispute resolution to tenants and landlords

Once the regulations are developed the Victorian Small Business Commission will update the FAQs and supporting website content.

They have also commenced reviewing the existing website content to make amendments to the current language which refers to 15th of January as the end of the scheme.

As a holding measure, a banner has been placed on the VSBC website noting the announcement of the scheme’s extension for some current participants. They will work closely with SBV and stakeholders to develop the new FAQs and content.  

  • Landlords will not be able to lock out or evict tenants without undertaking mediation through the VSBC

 

  • Eligible commercial landlords will continue to be eligible to access the Commercial Landlord Hardship Fund
Added a post 

ENT19 v Minister for Home Affairs [2021] FCAFC 217 (26 November 2021)

Intro:-

This appeal is concerned with a decision made by the Minister personally to refuse to grant a form of temporary protection visa known as a Safe Haven Enterprise Visa (SHEV) to a person found to be a refugee with a well-founded fear of serious harm in his country of nationality and who posed no security risk to Australia. The legal effect of the Minister’s decision was that the appellant would have to be removed to that country as soon as practicable and in the meantime held in immigration detention indefinitely. The substantive question on the appeal is whether in these circumstances, the Minister’s decision, which was based on the determination that the grant of the visa was not in the national interest, was affected by jurisdictional error.

Facts:-

The appellant is an Iranian national who entered Australia by sea from Indonesia without a valid visa on 14 December 2013, landing on Christmas Island. This meant that he was an “unauthorised maritime arrival” within the meaning of the Act (s 5AA), was then ineligible for a permanent protection visa, and could only apply for a temporary protection visa, such as a SHEV, if the Minister determined that it in the public interest to allow him to do so (s 46A).

Between 2012 and 2013, while waiting in Indonesia for a boat to take him to Australia where he hoped to be granted asylum, the appellant unlawfully facilitated the passage of other asylum seekers from Indonesia to Australia. On 3 February 2017 he lodged an application for a SHEV. On 13 October 2017 he was convicted in the District Court of New South Wales of the aggravated offence of smuggling a group of at least five non-citizens contrary to s 233C of the Act and sentenced to eight years imprisonment, with a non-parole period which expired on 9 December 2017 upon which he was transferred to immigration detention. The sentencing judge observed that the appellant had played a “people management role” which was “essential to carrying out the scheme”.

On 5 May 2020 the Minister’s Department put the appellant on notice that his participation in “the business of people smuggling contrary to Australian law” might cause the Minister to refuse to grant him a visa in the national interest because to do otherwise “could undermine the integrity of the protection visa program and Australia’s border protection regime, a key element of which is the deterrence of people smuggling”. The appellant was invited to comment and on 8 May 2020, he provided a statement and submissions to the Department in response to the invitation.

In his statement to the Minister the appellant acknowledged the seriousness of his offending but also drew the Minister’s attention to the circumstances in which he found himself and of which the sentencing judge was satisfied. The appellant noted that the judge was satisfied on the balance of probabilities that:-

His participation in the people smuggling venture was to obtain passage to Australia in order to be reunited with his family.

He played a people management role, which was essential to the venture, but he was not the organiser.

His moral culpability was significantly reduced because he was motivated by his desperation to be reunited with his family, his vulnerability, and his lack of resources.

The organisers had taken advantage of him.

He had good prospects of rehabilitation and was unlikely to reoffend.

He understood the impact of his offending on Australian society and had expressed “genuine contrition and remorse”.

He informed the Minister that, if his visa were to be refused on national interest grounds, he would remain in detention indefinitely as he would not choose to return to Iran where he would “face torture and death”. He pleaded that his case was not one of a “people smuggler” who “willingly breached Australia[n] sovereignty” or benefited financially from the assistance he provided. Rather, he impressed upon the Minister that he committed the offence because he was desperate to be reunited with his family and of his fear of significant harm in Iran. He said he had “good prospects of rehabilitation”.

In his submissions to the Minister, prepared by his counsel, the appellant contended that the national interest criterion in Sch 2 cl 790.227 of the Regulations must be read down so as not to include the potential for refusal of a protection visa on character grounds, otherwise the Minister could refuse a visa on character grounds outside s 36(1C) of the Act, which would be at odds with BAL19 v Minister for Home Affairs [2019] FCA 2189; 168 ALD 276, in which the power in s 501(1) to refuse to grant a visa was held not to apply to an application for a protection visa.

The Minister was not satisfied that the grant of the SHEV was in the national interest because the appellant had been convicted of playing an essential role in unlawful people smuggling and said that granting him a protection visa would send “the wrong signal” to people who might be considering engaging in similar conduct, “potentially weakening Australia’s border protection regime” and the policy that underpins it. He also said that granting a protection visa to such a person might “erode” the confidence of the community in the protection visa program. This was apparently the first time the national interest criterion had been invoked to refuse a protection visa to a person who had been convicted of a people smuggling offence.

The appellant applied unsuccessfully to the Federal Circuit Court for judicial review of the Minister’s decision. In this appeal he claims that the primary judge erred in failing to find that the decision was affected by jurisdictional error on two bases: first, because the Minister failed to have regard to the legal and practical consequences of his decision and second, because the Minister’s decision was legally unreasonable and/or illogical and irrational for a number of reasons.

Issues:-

a) whether the Minister failed to have regard to the legal and practical consequences of the decision, namely that the statutory effect of refusing to grant him a visa was his refoulement to Iran where he faced the real risk of persecution.

b) whether the Minister's decision was affected by a jurisdictional error on account of legal unreasonableness and/or illogicality and irrationality as the appellant was not taken to represent a danger to Australia’s security for s 36 of the Migration Act 1958 (Cth) but was taken to represent a danger to Australia’s security when considering clause 790.277 and/or the respondent’s decision was made for the substantial purpose of deterring others – and thus serves (impermissibly) as a punishment of the appellant.

Consideration:-

The Minister submitted that it was apparent he had considered the legal and practical consequences of his decision from his statement that the Authority had found that Australia had protection obligations in respect of him, his summary of the appellant’s submissions, and his statement that he had taken those submissions into account.

The Minister’s submission must be rejected.

It is one thing to mention these findings by the Authority. It is another to acknowledge the consequences of those findings and more particularly to consider those consequences for the purpose of determining whether it was in the national interest that he be granted a visa.

The Minister made no reference in his reasons to what would happen to the appellant if he were to refuse to grant him a SHEV. While he said he had taken into account the appellant’s submissions, he did not say that he accepted that the appellant would remain in indefinite detention as the appellant had surmised nor did he advert to the contents or effect of s 198(6) of the Act which, when read with s 197C, require an officer to remove from Australia an unlawful non-citizen whose visa application has been finally determined against him or her despite Australia’s non-refoulement obligations.

This Court has repeatedly explained what it means for an administrative decision-maker to consider something. It was not in dispute that a statutory obligation to consider a particular matter involves engaging in an “active intellectual process”: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ).

It is not apparent from the Minister’s reasons that he was conscious at the time he made his decision of the extent of the harm the Authority found he could face if he were to return to Iran. While the Minister referred to the appellant’s statement that he would not choose to return “where he would face torture and death”, the Minister did not say whether he understood that this was the fate the appellant potentially had in store for him if he were repatriated against his will. When referring to the Authority’s findings, the Minister did not mention the nature of the harm the Authority found he could face. His summary of the appellant’s “submissions”, which included the appellant’s statement, was brief. Without more, a statement that he had taken into account an applicant’s submissions does not evince any intellectual engagement with them. See, for example, Carrascalao and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

Notably in submissions in the court below, the Minister said that his reasons “made plain that [he] considered these personal circumstances [by which he meant the possibility of refoulement or indefinite detention] to be immaterial to the national interest in protecting Australia’s borders” and that was “sufficient”. But these were not mere “personal circumstances”. They were the legal consequences of a decision to refuse to grant the visa. And the submission that the Minister considered them to be immaterial to the national interest is effectively an admission that the Minister paid no regard to those consequences. If so, the admission was well made as it is apparent, for the reasons given above, that the Minister did not consider them. The next question is whether it was a jurisdictional error not to.

Was the Minister bound to take into account the legal and practical consequences of refusing to grant the visa and/or was it legally unreasonable not to?

The primary judge said that it was difficult to understand why Australia’s non-refoulement obligations and the consequences of removing the appellant to his country of origin would be a mandatory consideration for the Minister in dealing with the national interest criterion, “at least on the facts of this case”. Those facts were that the Authority had determined those questions “authoritative[ly]” and had remitted the consideration of the remaining criteria to the Minister.

It was common ground that, if the Minister failed to have regard to the legal and practical consequences of visa refusal, and this was a relevant consideration in the sense discussed by Mason J in Peko-Wallsend, then the Minister would have fallen into jurisdictional error. In Peko-Wallsend at 39–40 Mason J observed that an application for judicial review of an administrative decision on the ground that in the exercise of a discretionary power the decision-maker failed to take into account a relevant consideration, can only succeed if the consideration is one which the decision-maker was bound to take into account in making the decision. Such an obligation may be express or implied. Where there is no express requirement to do so, the question whether a particular consideration is, by implication, one the decision-maker is bound to take into account is to be determined by reference to the subject-matter, scope and purpose of the legislation.

In the present case, the Minister erroneously confined his assessment of the national interest by focusing on the type of offence the appellant had committed, the appearance of granting a protection visa to such an offender, and the implications of doing so for Australia’s border protection policy. The primary judge erred in holding otherwise. The Minister was entitled to take those factors into account. They were not irrelevant to the national interest. But the implications for Australia of returning the appellant to his country of nationality in breach of Australia’s non-refoulement obligations were also intrinsically and inherently relevant, for the reasons identified by Allsop CJ in CWY20, including because a breach of international legal obligations is a legal consequence of the decision. So, too, was the prospect of indefinite detention for, unless the detention were for a lawful purpose, detaining the appellant indefinitely could put Australia in breach of its obligations under the ICCPR.

The remaining question is whether the error was jurisdictional. That depends on whether the error was material in the sense that it could have made a difference to the outcome of the appellant’s application: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (Bell, Gageler and Keane JJ). In answering that question, the observations made by Kerr and Mortimer JJ (Allsop CJ agreeing) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 must be borne in mind:

The weight to be given to the executive dimension of Australia’s non-refoulement obligations was of course a matter for the [Minister] to decide. This Court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the [Minister], and speculate about what would or could have changed a particular [Minister’s] mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a [Minister] acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45, Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 .

Counsel for the Minister submitted, in effect, that the information as to Iran’s policy contained in the DFAT report indicates that a failure by the Minister to consider the effect on the national interest of a breach by Australia of its non-refoulement obligations could not have made a difference to the Minister’s decision.

The evidence in question appears at [5.27] of the report. It reads:-

"Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality."

That information certainly indicates that the appellant’s refoulement to Iran was an unlikely consequence of the Minister’s decision. But in the absence of a third country to which he could be removed, the inevitable consequence of refusing to grant the appellant’s application was that he would be indefinitely held in immigration detention. That was not merely a practical consequence of the decision, it was also a legal consequence. Assuming the Minister was acting fairly and reasonably, with a mind open to persuasion, giving active and genuine consideration to all relevant matters, including the matters he erroneously omitted to consider, I am persuaded that there was a realistic possibility that his decision could have been different. In these circumstances, the Minister’s error was material and therefore jurisdictional.

Was the Minister’s decision affected by jurisdictional error in that it was legally unreasonable, illogical and/or irrational because the appellant had not been found to be a danger to Australia’s security under s 36(1C)(a) of the Act?

It is well established that where a statute requires an opinion to be formed or state of satisfaction to be reached as a precondition to the exercise of a statutory power or the performance of a statutory duty the opinion must be formed or the state of satisfaction must be reached reasonably: see, for example, Re v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 432 (Latham CJ); Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [34] (Gleeson CJ, Gummow, Kirby and Hayne JJ). As Gageler J observed in Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [90], “[e]ach is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute”.

Sections 36(1A) provides that an applicant for a protection visa must satisfy both the criteria in subs (1B) and (1C) and at least one of the criteria in subs (2).

One of the criteria in subs (2) was (and is) that the applicant for the visa is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”. Having regard to the direction of the Authority, the Minister must have been satisfied that the appellant satisfied this criterion.

Subsections (1B) and (1C) were (and) are in the following terms:

(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia’s security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.

The Departmental submission indicates that the appellant satisfied both these criteria. For this reason the appellant argued that he was not a person whom the Minister considered, on reasonable grounds, to be a danger to Australia’s security and therefore the grant of a protection visa to the appellant would not undermine the protection of Australia’s territorial and border integrity from serious threats. The appellant submitted, in substance, that the Minister had not taken account of the effect of ss 36(1A) and 36(1C) when considering whether the criterion in Sch 2 cl 790.277 had been satisfied. By implication, he contended, the Minister’s decision‑making process reveals “extreme illogicality or irrationality” because the appellant was not taken to represent a danger to Australia’s security for the purpose of s 36(1C) but he was taken to represent a danger to Australia’s security for the purpose of Sch 2 cl 790.277.

It may be accepted that the Minister was required to take into account the legal framework for his decision. Contrary to the appellant’s submission, however, there is no necessary inconsistency between being satisfied that the appellant is not a danger to Australia’s security for the purpose of s 36(1C) and not being satisfied that it is in the national interest to grant him a SHEV for the purpose of Sch 2 cl 790.277.

“Security” is not defined in the Act. But s 36(1C) should be read in context with s 36(1B). Read in context “security” in s 36(1C) should be taken to mean “security” as defined in s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth). That definition arguably includes the concerns that actuated the Minister but is not limited to them. It reads:-

security means:

(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i) espionage;

(ii) sabotage;

(iii) politically motivated violence;

(iv) promotion of communal violence;

(v) attacks on Australia’s defence system; or

(vi) acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(aa) the protection of Australia’s territorial and border integrity from serious threats; and

(b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

The Minister decided that granting a protection visa to a convicted people smuggler would have an adverse impact on Australia’s border protection regime and the policy that underpins it and that granting the visa would undermine public confidence in the protection visa program. It is simply incorrect to assert, as the appellant did in his notice of appeal, that the Minister took him to represent a danger to Australia’s security when considering cl 790.277. The primary judge was correct to find that the Minister’s consideration of “the national interest” was wider than the national security criteria in s 36(1C)(a). They are concerned with the risks to Australia’s security posed by the appellant. The Minister’s concern was with the risks to Australia’s security posed by others.

Was the Minister’s decision affected by jurisdictional error in that it was legally unreasonable, illogical and/or irrational because it was made for the purpose of further punishing the appellant?

It will be recalled that particular 3 of ground 2 of the notice of appeal alleges that the Minister’s decision was made for the substantial purpose of deterring others and therefore impermissibly served as a punishment of the appellant and the primary judge erred in concluding otherwise.

The primary judge’s conclusion appears in [155] of his reasons for judgment. His Honour said the adoption of the policy he described in [154] was not a decision to impose a punishment on the appellant. His Honour went on to say:

There was an unmistakable concept of deterrence in the Minister’s decision but it was not directed at the applicant as an individual. It was dealt with at a higher level of abstraction, consistently with the Minister’s view of what the national interest required.

In NBMZ, Allsop CJ and I also accepted that it might be legitimate for a Minister to consider that the refusal to grant a visa to a person who has offended in some way may act as a disincentive to others and thereby protect other detainees or the Australian public. But we warned that “care needs to be taken” for there is authority for the proposition that a deportation order made for the sole or substantial purpose of deterring others would serve (impermissibly) as punishment of the criminal: Re Sergi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 (per Davies J); Re Gungor and Minister for Immigration and Ethnic Affairs [1980] AATA 32; (1980) 3 ALD 225  (per Smithers J); and see Djalic and Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172.

In Tuncok, the Full Court (Moore, Branson and Emmett JJ) observed that it might be that “if the sole, or a substantial, factor justifying cancellation of a visa were the deterrence of others from committing a crime, the purpose of the decision may be punitive, which might be an irrelevant consideration”, citing Re Sergi and Re Gungor .

In the present case, it is indisputable that a substantial, if not the sole, reason the Minister refused to grant the appellant a visa was to deter people smugglers. In his remarks, the sentencing judge emphasised the importance of general deterrence in sentencing a person convicted of a people smuggling offence. Apart from the objective seriousness of the offence, it was the single most important factor accounting for the length of the appellant’s sentence. In these circumstances the purpose of the Minister’s decision can properly be regarded as punitive and refusing to grant the appellant a visa on this basis does amount to double punishment. That is because the practical effect of the Minister’s consideration of the national interest was that in circumstances where the appellant otherwise engaged the criteria for a protection visa, the Minister determined that the appellant should be further punished by being denied a protection visa so as to give effect to considerations of general deterrence of people smugglers, when the appellant had already been sentenced on that basis. The primary judge erred in holding otherwise.

For this reason deterrence might well be said to be an irrelevant consideration in determining whether to refuse to grant a visa, even on national interest grounds. While this was not the basis upon which the argument in the present case was put, a decision-maker who is actuated by irrelevant considerations may be said to be acting “unreasonably”, that is “legally unreasonably”: see Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332  where French CJ said that:-

"In [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223], Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:-

“If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”

That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred."

Regardless of whether the Minister’s decision is legally unreasonable because it amounted to double punishment, for that reason it was not authorised by the Act pursuant to which it was purportedly made and was therefore vitiated by jurisdictional error.

Conclusion:-

The appeal should be allowed. The orders of the primary judge should be set aside, writs of certiorari and mandamus should issue to quash the Minister’s decision and direct the Minister to determine the appellant’s visa application according to law. The Minister should pay the appellant’s costs both in this Court and the court below.

Added a post 

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 (23 November 2021)


Intro:-

These cases illustrate how an exercise of legislative power may give rise to intersecting exercises of executive power, all of which are subject to the Constitution and the general law. There is one essential question: can this Court on judicial review determine whether the non-statutorily based administrative actions taken by the Departmental officers in these two cases are unlawful because they are legally unreasonable? This was an initial question for each primary judge in both cases.

Facts:-

The appellants, Mr Martin John Davis and DCM20, are non-citizens. They each made an application for a visa under the Migration Act 1958 (Cth) and in each case the application was refused by a delegate exercising powers of the Minister then responsible for administering the Act. Those decisions were affirmed on review by the Administrative Appeals Tribunal (AAT) and the formerly-named Migration Review Tribunal (MRT) respectively in the exercise of review powers conferred under s 349(2)(a) of the Act.

At relevant times s 351(1) of the Act provided that the Minister may substitute a more favourable decision for that made by the MRT (in the case of Mr Davis) or the AAT (in the case of DCM20) if the Minister thinks it is in the public interest to do so. The power to intervene under s 351 may only be exercised by the Minister personally: s 351(2). The Minister does not have a duty to consider whether to exercise the power in respect of any decision, whether he or she is requested to do so or in any other circumstances: s 351(7).

In March 2016, the Minister issued Guidelines in relation to a number of intervention powers, including that conferred by s 351 of the Act. The Guidelines are directed to officers employed within the now-named Department of Home Affairs. They define the circumstances in which requests for intervention under s 351 are to be referred to the Minister for “possible consideration”.

The appellants each made repeated requests for intervention under s 351 of the Act (intervention requests). The identity of the persons who assessed the requests differs in each case. For present purposes it is convenient to refer to them generically as the Departmental officers.

The Departmental officers did not refer the intervention requests to the Minister because, in their respective assessments, the requests did not fulfil the conditions for referral as set out in the Guidelines.

The appellants each commenced an application in this Court for relief under s 39B(1) of the Judiciary Act 1903 (Cth). Among other things, they argued that the assessments were amenable to judicial review on the ground of legal unreasonableness. As to the availability of judicial review on that ground, the appellants relied on the judgment of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438. The respondents contended that Jabbour had been wrongly decided, but acknowledged that the decision should be followed by another single judge of the Court, unless shown to be plainly wrong. The primary judge in each case proceeded from the premise that the assessments were amenable to review, but dismissed the applications on the basis that legal unreasonableness had not been established in the particular case: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 and DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022.

The appellants appeal from the respective judgments. The appeals may be referred to as the Davis appeal (VID399/2020) and the DCM20 appeal (NSD831/2020). The first respondent to the Davis appeal is the now-titled Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The relevant Departmental officers are joined as respondents in each case.

The proceedings raise common issues concerning the availability and ambit of judicial review including the utility of the remedies sought and discrete issues concerning the application of principle to the facts of each case.

Issues:-

Did the primary judge err in failing to find that the decision not to refer the intervention request to the Minister was legally unreasonable and (in the case of DCM20) in failing to find that the relevant Departmental officer misconstrued the Guidelines?


Defining the limits of non-statutory power

As an implied condition on the exercise of a statutory power, the requirement of legal reasonableness arises by a common law principle of statutory construction. As Gaudron J said in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (at [116]):-

"As with the rules of procedural fairness, it is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it. ..."

The unsurprising proposition that Parliament is taken to have intended that a statutory power be exercised reasonably was confirmed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [123]) and in each of the three judgments of the High Court in Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, French CJ (at [26] and [29]), Hayne, Kiefel and Bell JJ (at [63]), Gageler J (at [88] – [91]); see also Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 (at [15]) and Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, Brennan CJ (at 36). As Gageler J said in Li (at [92]), the obligation is not to be implied as a condition of validity if its implication is inconsistent with the statutory text or with the nature or context of the statutory power or duty. His Honour continued:

"... The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed."

See also Minister for Home Affairs v DUA16 [2020] HCA 46, 385 ALR 212, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ (at [26]).

The statute supplies not only the implication of the obligation, but its practical content in the particular case. Discerning the content is important, as the limits of statutory power and the limits of the Court’s supervisory jurisdiction are inextricably linked. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1:-

7 ... There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. ...

8 The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: Li at [30], [66] and [105]."


As can be seen, the body of principle concerning “legal unreasonableness” has developed as a judicial response to statutory problems. It is a body of judge-made law concerned with the interpretation of statutes. However, as Allsop CJ explained, as a limitation on power, legal unreasonableness has its foundations in the principles and values of the common law, including the value of reasonableness and, I would add, rationality. Robertson J plainly had the same values in mind when he said in Jabbour (at [101]):-

"If it be necessary to find a conceptual underpinning for the role of this Court in judicial review of governmental action under non-statutory powers, the Court having jurisdiction under s 39B of the Judiciary Act, reflecting relevantly the jurisdiction of the High Court under s 75(v) of the Constitution, I would find it in the common law. The matter is discussed by Professor Fiona Wheeler in ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’ [1992] SydLawRw 32; (1992) 14 Sydney Law Review 432 at 461ff and by Ms Amanda Sapienza in ‘Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom’ (2018) 43 University of Western Australia Law Review 67. It would seem to me to be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside statutory interpretation. The creation of ‘islands of power immune from supervision and restraint’ or ‘distorted positions’, referred to in Kirk by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [99], would thereby be avoided. The second respondent is of course an officer of the Commonwealth within s 75(v) and s 39B."

The respondents argue that Robertson J’s analysis is erroneous. They submit that the rule of statutory construction that supplies the implied obligation of legal reasonableness is not a free-standing rule, but rather is limited to discerning the intention of Parliament. In respect of non-statutory executive power, the respondents submit, the statutory foothold for the application of the principles discussed and applied in cases such as Li and SZMDS is missing.

These submissions tend to misapprehend the reasoning in Jabbour. Robertson J did not purport to directly apply a common law rule of statutory interpretation in a non-statutory context. Rather, his Honour said that the body of law that supplied the rule of statutory construction (the common law) also supplied a principled answer to the question before him.

Robertson J identified a principle “existing outside statutory interpretation” from which a restraint on the exercise of non-statutory powers may be identified and its contours defined. His Honour went on (at [102]) to describe the content of the condition as at least equivalent to that discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (at [47]), “that is, reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action”. His Honour said that legal unreasonableness may also be established by reference to the result, that is, by demonstrating that no reasonable decision-maker would have refused to refer the intervention request to the Minister, thus adopting the test referred to in Abebe extracted at [292] above. Neither approach required the limits of the power to be discerned by direct reference to the scope or purpose of a statute. His Honour said that “the guidelines and characteristics of the power” in the Ministerial intervention cases nonetheless performed a function comparable to the scope and purpose of a statutory power. To the extent that the respondents submitted that Robertson J erroneously applied a body of law solely concerned with statutory interpretation to a non-statutory context, that submission must be rejected. The reasoning in Jabbour is more nuanced than that.

For my part, I consider it unhelpful to examine the executive power exercised in the present cases in a way that assumes a strict “statutory” or “non-statutory” dichotomy. All powers exercised by officers of the Commonwealth have the Constitution (itself a statute) as their ultimate source. The respondents have not suggested that statutory powers have outer limits, but non-statutory powers do not.

The High Court’s jurisdiction under s 75(v) of the Constitution is not, in terms, limited to the supervision of power conferred by statute. In discerning the outer limits of the power in issue in a particular case (and likewise the limits of the Court’s supervisory jurisdiction) it is of course necessary to have regard to the nature of the power, the legal context in which it is exercised and the factual subject matter upon which it operates. The factual subject matter in the present cases is plainly justiciable. There is no risk that the issue of the Constitutional writs would impermissibly interfere with a purely political field of activity.

When proper consideration is given to the legal framework in which the Guidelines exist, two layers of “statute” may be seen, depending on the lens used. Their identification results in the implication of an obligation of legal reasonableness notwithstanding that the non-referral decisions were not made “under” the Act in the direct sense.

Viewed narrowly, the legal framework is one in which the Act forms an integral part. As explained earlier, the Guidelines furnished the Departmental officers with the authority to do what otherwise could not lawfully be done. The circumstance that decisions made by reference to the Guidelines are not made “under” the Act for the purposes of the statutory “migration decision” definition should not obscure the obvious statutory framework in which the Guidelines were issued and their terms implemented. In the legal context, a condition of legal reasonableness attending the implementation of the Guidelines may be seen as a means of supervising the limits of the statutory duty that otherwise arises by reference to the Act: the obligation to make the Minister aware of the fact the request had been made (see [261] and [270] above) that would otherwise exist had the Guidelines not been issued. An excess of authority in implementing the Guidelines has the legal consequence that the non-referral “decision” lacks any form of lawful authority at all.

Adopting a wider view, the Departmental officers are seen as members of the Commonwealth executive, a branch of government having powers conferred by and described by (at least) s 61 and s 64 of the Constitution. There is no reason to suppose that the principles of the common law that have developed in response to problems concerning the limits of powers directly conferred by laws of the Commonwealth cannot also inform the limits of other powers having their source more directly in the Constitution. The limits on such powers are to be discerned from the structure and text of the Constitution itself, the common law suppling a body of principles against which the Constitution may be interpreted: Plaintiff M68/2015, Gageler J (at [138]).

As Gaudron J said in Abebe (at 116) (in a statutory context), if the statute conferring a decision-making power is silent on the question, “it is difficult to see why” the statute should not be construed as imposing a condition of reasonableness as a default position. Given the arguments now raised by the respondents, it is necessary to ask why that implication should arise so readily. The answer is that to act irrationally, arbitrarily or capriciously in the exercise of a statutory power will be to act contrary to the purpose for which the power is conferred, that is, to act in a way removed from any objective the legislature might conceivably have had in mind when conferring it.

In Jabbour, Robertson J said that it would be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside the realm of statutory interpretation. I respectfully agree.

The respondents’ submission that it is impossible to define the outer limits of the power in question absent a statute must also be rejected. In the legal context discussed above, the practical application of the principle of legal unreasonableness is as follows. The power exercised by the Departmental officers is derived from s 61 and s 64 of the Constitution. The Minister’s administrative power to make the Guidelines is that vested in him by the Governor-General under s 61. The Department is established by the Governor-General under s 64. The Minister is appointed to administer the Department under s 64. The purpose of those devolutions of executive power is plain from the Constitutional text: the execution and maintenance of a law of the Commonwealth, namely s 351 of the Act. As identified earlier in these reasons, the power in s 61 of the Constitution (as devolved upon the Minister under s 64) extends to the administration of the whole of government. It could hardly be supposed that officers of a Department administered by the Minister (having responsibility for the execution of an Act within the bounds of legal reasonableness), should be held to a lower standard in the performance of their non-statutory powers or the discharge of their duties than that which applies to the Minister himself. As is the case with powers directly conferred by statute, the exercise of non-statutory powers in that way is apt to undermine the purpose for which the powers are conferred by (or via) the Constitution, and the role of those powers in the Constitutional framework.

In my view, Robertson J was correct to say that the guidelines there under consideration served a comparable function to a statute when discerning both the availability of the unreasonableness ground for judicial review and its practical content. That was the approach adopted by the primary judge in each of the present cases by reference to the Guidelines now in force. There was no appealable error in adopting that approach.

The Davis Appeal

a) Whether the primary judge erred in failing to find that the Assistant Director’s determination that the request for intervention did not meet the criteria for referral in the Guidelines was “a decision that no reasonable decision-maker could have made”?

The submission that the Assistant Director did not have regard at all to the impact upon Ms Giddins when the request for intervention was first made should be accepted. The failure to consider that impact is made plain in the reasons given in response to the “repeat request”, which contained an unqualified statement that there was “no evidence that any Australian citizen, permanent resident, or Australian business, would suffer hardship” had previously been provided. Plainly, evidence of that kind had previously been provided. The Assistant Director was wrong to state otherwise.

Given the role of the Guidelines identified earlier in these reasons, Mr Davis was entitled to have his assertions concerning Ms Giddins assessed against their criteria on his initial request for intervention. When Mr Davis complained that the initial assessment was flawed because of that failure, his complaint ought not to have been characterised as a “repeat request”. It could not be so characterised because although the asserted impact on Ms Giddins had previously been raised, it had not previously been considered.

However, notwithstanding the erroneous characterisation of Mr Davis’s letter of 15 May 2019 as a “repeat request”, the Assistant Director in fact went on to substantially consider the asserted impact upon Ms Giddins by reference to the materials provided. The Assistant Director did not refuse to consider the issue on the basis that the information asserted in the complaint did not amount to a changed circumstance. Rather, the Assistant Director gave the issue active consideration under the Guidelines as though the issue had not previously been considered. The Assistant Director concluded that there was no evidence that there was no other person in the community able to provide support to Ms Giddins of the kind that she claimed to receive from Mr Davis. That substantive conclusion was open to the Assistant Director to make.

The primary judge was correct to conclude that the demonstration of error in treating that letter as a “repeat request” could not assist Mr Davis on the application for judicial review, for the reasons that his Honour gave.

DCM20

The first ground concerned the decision-maker’s conclusion that the medical information DCM20 had provided did not indicate any significant deterioration in her parents’ health. It was submitted that the medical evidence provided in support of the repeat request clearly demonstrated a deterioration in the health of DCM20’s mother in the period following the 2016 request. It was submitted that letters from the mother’s general practitioner in 2016 and 2019 demonstrated that she suffered from significant medical conditions that were not present at the time that the 2016 request was made, including mobility restrictions requiring a higher level of care. It was submitted that the decision-maker was not medically qualified to form an opinion that there had not been significant deterioration in the mother’s health. It was submitted that the decision-maker fundamentally misunderstood that the nature of the health conditions constituted a significant change in circumstances, and so fundamentally misunderstood the request.

The primary judge identified that the focus of the challenge in the first ground of review was the decision-maker’s statement that the applicant “now claims to care for her parents full-time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents’ health”. The primary judge concluded that the statement had not been shown to be illogical or irrational, because, inter alia that it was plainly open to the decision-maker to conclude that the mother’s health had not significantly deteriorated by reference to the brevity and inconclusive nature of the report by the mother’s general practitioner provided in 2019, which the primary judge considered in some detail.

The second ground concerned the treatment of DCM20’s claims to fear harm as a single woman of Indian ethnicity should she be returned to Fiji.

The primary judge observed that clause 4 of the Guidelines provided that “unique and exceptional circumstances” may include a significant threat to personal security, human rights or human dignity arising by reason of a person’s particular circumstances or personal characteristics, but that was subject to a qualification that the mistreatment must not “meet the criteria for the grant of any type of protection visa”. Section 48B of the Act authorised the Minister to “lift the bar” in s 48A which would otherwise prohibit the making of a second protection visa application where a prior protection visa application had been refused. The primary judge observed that the Minister had issued guidelines about the referral of matters to him for possible consideration of the exercise of the s 48B power.

It was submitted that the decision-maker’s finding that it remained open to make a request under s 48B was legally unreasonable because the decision-maker had mischaracterised the claims and failed to consider the claimed threat of harm as being a relevant consideration under clause 4 of the Guidelines, and because there was no intelligible justification for ignoring or disregarding the claims of significant personal threats. As the primary judge identified, those arguments depended on a proposition that the claim to fear harm was not a claim that would meet the criteria for the grant of a protection visa.

The primary judge held that the decision-maker had not disregarded this aspect of the request for intervention and had formed the view that it was a circumstance falling outside those contemplated by clause 4 of the Guidelines. It was common ground, her Honour said, that the claims were of such a nature that, if accepted, would satisfy the criteria for the grant of a protection visa.

I am not satisfied that there is appealable error in the approach of the primary judge. Her Honour was correct to find that the Guidelines were not misconstrued by the original decision-maker, at least not in a way that would give rise to a finding that the decision not to refer the request to the Minister was legally unreasonable. To the extent that it is necessary to express any concluded view as to the proper construction of the Guidelines, I respectfully share the view of the primary judge.

Conclusion:-

Both appeals must be dismissed.

Added a post 

BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 (16 November 2021)

Intro:-

On 2 June 2021, the primary judge dismissed the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal on 8 December 2020, affirming a decision made under s 501CA(4) of the Migration Act 1958 (Cth) of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs of 15 September 2020 not to revoke a decision made under s 501(3A) of the Act to cancel the appellant’s visa. The appellant appeals against that decision.

Facts:-

The appellant was sentenced to 16 months’ imprisonment in 2014 for one count of assault occasioning actual bodily harm in the company of others and three months’ imprisonment for one count of destroy or damage property. These sentences were later varied to a 16 month intensive correction order and a good behaviour bond. The appellant was convicted in 2019 of two counts of assault, three counts of stalk/intimidate and one count of destroy or damage property for which he was sentenced to an aggregate 18 month custodial sentence.

On 14 February 2019, a delegate of the Minister cancelled the appellant’s visa under s 501(3A) of the Act. On 12 March 2019, the appellant requested revocation of the visa cancellation. On 14 September 2020, a delegate decided under s 501CA(4) of the Act not to revoke the cancellation of the visa.

The appellant applied under s 500(1)(ba) of the Act to the Tribunal for a review of the delegate’s decision not to revoke the cancellation. The Tribunal conducted a hearing on 23 and 25 November 2020 at which the appellant was legally represented. It was not in dispute that the appellant did not pass the character test because of his “substantial criminal record” as defined in s 501(7) of the Act. The Tribunal concluded that the appellant did not pass that test. This meant that s 501CA(4)(b)(i) did not apply and the question for the Tribunal was therefore whether there was “another reason” within the meaning of s 501CA(4)(b)(ii) why the visa cancellation should be revoked.

The Tribunal noted it was required to have regard to Ministerial Direction 79 (“Direction 79”): s 499(2A) of the Act. The Tribunal referred in detail to Direction 79 identifying the primary and other considerations to be taken into account.

In relation to the “primary considerations” identified in Part C of Direction 79:

(a) Protection of the Australian community from criminal or other serious conduct:- The Tribunal found that the appellant’s criminal offending had been repetitive and violent, and that his victims included a woman and children. It found that the seriousness of the appellant’s criminal offending weighed against the exercise of the discretion to revoke the decision to cancel the visa. The Tribunal found that the likelihood of the appellant engaging in further criminal or serious conduct was low to moderate, but that this level of risk was unacceptable given the nature of the harm he may cause to his victims if he were to re-offend.

(b) The best interests of minor children in Australia:- The Tribunal noted that the appellant did not have any children of his own and there was no evidence before the Tribunal that any minor children would be affected by his removal from Australia.

(c) Expectations of the Australian community:- The Tribunal found that, although the appellant had contributed positively to Australia in various respects, the expectations of the Australian community weighed against revocation of the cancellation decision given the nature of the appellant’s criminal offending.

As to the “other considerations” identified in Part C of Direction 79, the Tribunal relevantly found that the appellant was owed non-refoulement obligations by Australia – see: cl 14(1)(a) and 14.1. The Tribunal was satisfied that there was a real chance of the appellant being persecuted, or a real risk of him suffering serious harm, due to his religious beliefs as a member of the Sabian Mandaean faith if he was returned to Iraq.

The Tribunal concluded that the existence of non-refoulement obligations owed to the appellant weighed in favour of revocation, but that this did not outweigh the two primary considerations which (as mentioned) the Tribunal found weighed against revocation of the cancellation decision.

The Tribunal affirmed the delegate’s decision to refuse to revoke the cancellation of the appellant’s visa.

Issue:-

Did the Tribunal failed to carry out [its] statutory function according to law by failing to consider, in the relevant legal sense, representations made by the appellant under s 501CA(4) of the Migration Act 1958 (Cth), in support of his request for revocation of the mandatory cancellation of his visa?

Consideration:-

The decision in respect of which the appellant sought review in the Tribunal was the decision under s 501CA(4) of the Act not to revoke the mandatory visa cancellation.

The appellant submitted to the Tribunal, amongst other things, that: (a) Australia owed him non-refoulement obligations; and (b) the Minister would not grant him a protection visa on “character grounds”. The appellant referred in this respect to ss 36(1C) and 501 of the Act. The appellant submitted that, if the cancellation decision were not revoked, he might either be refouled in breach of Australia’s non-refoulement obligations or he might be indefinitely detained.

Under the heading “Legal consequences of decision”, the Tribunal addressed these submissions. It stated:-

"In making its decision, the Tribunal is bound to consider the legal consequences of its decision. The [appellant] submits that if the Tribunal decides, as it has, that non-refoulement obligations are owed to him, and it decides not to revoke the Reviewable Decision, the [appellant] may be subject to indefinite immigration detention."

The Tribunal set out the following passage from DFTD v Minister for Home Affairs [2020] FCA 859 at [40]- [42] (Tribunal’s emphasis):

"The primary legal consequence attaching to the applicant’s status as an unlawful non- citizen is that he must be removed from Australia as soon as might reasonably be practicable: the Act, s 198. The fact that the applicant is, as the Tribunal found (and the Minister accepts), a person in respect of whom Australia owes obligations of non- refoulement has no bearing upon that requirement: the Act, s 197C.

The prospect, if there is one, that the applicant might languish for a prolonged period in immigration detention arises (at least in large part) because it is the policy of the Australian government that unlawful non-citizens in respect of whom there exist obligations of non-refoulement will not be returned to the countries within which they properly fear that they will be persecuted. In order that the applicant might be removed from Australia, there must first be somewhere to which he might be removed. His homeland, Indonesia, is not an option in that respect because taking him there would offend government policy. Thus, removal “as soon as reasonably practicable” might take longer in the case of the applicant than would otherwise be the case; but that is not so because of anything in the Act.

To observe that removal might take longer in the applicant’s case is to invite speculation as to what might be in store for the applicant following the Tribunal’s Decision. There are a number of avenues by which the applicant’s time in immigration detention might be brought to an end (and that do not involve him being sent to Indonesia). Perhaps the most obvious is that he might apply for and obtain a protection visa: a possibility that the Tribunal itself urged the applicant to explore. The mere possibility of prolonged immigration detention is not a circumstance of which the subject matter, scope and/or purpose of the legislative scheme require, by implication, that a decision maker take [into] account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act."

The Tribunal noted that, like the position in DFTD, the appellant could apply for a protection visa: T[136]. The Tribunal recorded, and it was not in dispute, that the appellant was not prevented by ss 48A and 501E from lodging an application for a protection visa. The Tribunal concluded that the legal consequences of non-revocation were not necessarily either removal from Australia or indefinite detention, referring in this respect to AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; [2016] FCAFC 105 at [70]: T[137], [139]. The Tribunal necessarily concluded that the legal consequences of the decision included the possibility of refoulement or indefinite detention. The Tribunal concluded that the legal consequences of a decision not to revoke the cancellation weighed in favour of revocation, but that this consideration was outweighed by the two primary considerations which it had concluded weighed against revocation: T[140] and [143], [163].

The appellant submitted that the Tribunal did not address his submission that he was likely to be refused a protection visa on character grounds. The primary judge stated at J[57] in respect of the equivalent argument put to his Honour:

"The fact that the Tribunal did not attempt to assess the likelihood that an application for a protection visa by the applicant would be granted does not reveal any failure by the Tribunal to give proper consideration to the applicant’s claim that he would suffer serious harm if forcibly returned to Iraq or that he would be indefinitely detained if he was not. It accepted that these were possibilities but that they were not sufficient when considered with other relevant matters to weigh in favour of revocation of the decision to cancel his Visa. I therefore reject the first of the grounds relied upon by the applicant."

Those conclusions were correct. The Tribunal was not required to reach a view as to whether a future application for a protection visa would be rejected on “character grounds” in order to discharge its function of reviewing the delegate’s decision including by taking into account the representations which the appellant had made.

At the time of the Tribunal’s decision, the appellant had not applied for a protection visa. An application for such a visa would have been unnecessary if the appellant’s review in the Tribunal were successful. If such an application is made, the Minister would then need to consider that application in light of the circumstances as they exist at the time of his consideration of that application. This is a decision to be made at some point of time in the future. It is a decision which may, if thought necessary, also be challenged. Whether any such decision will be challenged and the basis for any such challenge are not known.

The Tribunal did not err in a manner going to jurisdiction in not reaching a more specific conclusion as to the degree of likelihood of a future protection visa application being rejected or of refoulement to Iraq or indefinite detention becoming a reality.

The Tribunal conducted a review which complied with what the Act required. The Tribunal considered the appellant’s submission that he might be refouled to Iraq or be indefinitely detained because an application for a protection visa would be refused. There was no jurisdictional error in determining the review on the basis that refoulement or indefinite detention were possibilities, but not inevitabilities. That conclusion was open.

The Tribunal took into account the representations which the appellant had made when reviewing the decision under s 501CA(4)(b)(ii) not to revoke the cancellation for “another reason” in each of the three ways identified in the particulars to the amended notice of appeal. It follows that the ground of appeal is not made out.

Conclusion

The appeal must be dismissed with costs.

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CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 (22 November 2021)

Intro:-

This is an appeal from a judgment of a judge of the Court delivered on 24 February 2021, dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal on 17 August 2020. By this decision, the Tribunal affirmed the decision of a delegate of the respondent Minister not to revoke the cancellation of the appellant’s protection visa.

Facts:-

The appellant, CVRZ, is a citizen of Zimbabwe. He arrived in Australia in December 2007 on a visitor visa. He has lived in Australia continuously since then, except for about two weeks in July 2009 when he returned to Zimbabwe. He was granted a Class XA Subclass 866 Protection Visa (“protection visa”) on 4 February 2009.

Between 2009 and 2018, while living in Australia, CVRZ was convicted of numerous criminal offences. It suffices to note here that, on 17 July 2018, the Magistrates Court of Queensland convicted him of assaults occasioning bodily harm, in respect of which he was sentenced, concurrently, to twelve months imprisonment. CVRZ’s protection visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on 27 September 2018.

Section 501(3A) mandated the cancellation of CVRZ’s visa in the circumstances that existed at the time. CVRZ sought revocation of the cancellation decision under s 501CA(4) of the Act and was subsequently notified, by letter dated 25 May 2020, that he had failed. On 28 May 2020, CVRZ applied to the Tribunal for review.

On 17 August 2020, the Tribunal affirmed the non-revocation decision and, as indicated, CVRZ sought judicial review of the Tribunal’s decision in this.

The Tribunal's decision

Before the Tribunal, CVRZ, who was legally represented, argued that, although he did not pass the character test as contemplated by s 501CA(4)(b)(i) of the Act, there was another reason why the original cancellation decision should be revoked, as contemplated by s 501CA(4)(b)(ii). CVRZ submitted that he belonged to the Ndebele group, an ethnic minority group in Zimbabwe; that he supported the Movement for Democratic Change (“MDC”), a political party in Zimbabwe whose supporters were subject to violent attacks; and that he would be persecuted for his political views, ethnicity and time spent in Australia if he were returned to Zimbabwe. CVRZ also submitted that he had two minor children in Australia, both of whom were citizens, and that he intended to re-establish a relationship with one of them. He submitted that this child would lose the emotional and financial support that he could provide if the cancellation decision were not revoked. CVRZ also submitted that these matters meant that his visa cancellation constituted “extremely severe punishment” disproportionate to his previous offending history, such that the Australian community would expect the cancellation decision to be revoked.

The Tribunal found inter alia, that CVRZ’s claims concerning the risk to him of harm if returned to Zimbabwe were contrary to information in the relevant DFAT Country Information Report for Zimbabwe (“DFAT Country Information Report”): TR, [271]-[272]. It stated (TR, [274]-[275]):

"... Having regard to the Country Information Report’s specific reference to the “voluntary assisted return and reintegration program” for returnees, it is difficult to attribute any level of credibility to the Applicant’s claim that he would be adversely dealt with at or shortly after his arrival in Zimbabwe. Similarly, it is difficult to accept the Applicant’s analysis of the political situation in Zimbabwe and how, according to him, it adversely impacts members of the Ndebele ethnic minority, when the Country Information Report tells us that Ndebele people have participated at all levels of Zimbabwean society, commerce and government, and otherwise “have played prominent roles in public life, including as Vice Presidents, Ministers, and key opposition figures.”

Ultimately, doubt must be cast on the Applicant’s claims of harm upon a return to Zimbabwe in view of the findings in the Country Information Report, which makes it clear that the Ndebele and Shona generally coexist harmoniously in daily life, and, with relative commonality, intermarry. As mentioned in the Country Information Report, DFAT has no knowledge of any recent cases “in which Ndebele have been harassed or physically attacked on the basis of their ethnicity.” To my mind, these claims of harm by and on behalf of the Applicant amount to little more than bald and unsupported statements. Apart from the Applicant’s own self-serving version, there is no detailed and independently verified explanation or particularisation of how this risk of harm would crystallise or manifest in reality.

The Tribunal rejected CVRZ’s claims that, with respect to him, Australia had international non-refoulement obligations. The Tribunal noted that “[t]he author of the ITOA reaches similar conclusions to mine in terms of the absence of any current evidence that the Applicant’s involuntary return to Zimbabwe as a known supporter of the MDC would place him at any level of measurable risk”: TR, [288] (italics in original). The Tribunal stated (at [297]) that:-

"... [f]or reasons I have sought to outline, I place significant weight on the findings expressed in the ITOA, bearing in mind its very close proximity in time to the instant hearing and in circumstances where the Applicant acknowledges that procedural fairness was afforded to him in terms of having the opportunity to make submissions in response both prior to and after its publication to the parties."

The Tribunal thus placed no weight on the consideration identified in cl 14(1)(a) of Direction 79, being “international non-refoulement obligations”: TR [308].

Leave to raise new grounds

Each of the appeal grounds upon which CVRZ sought to rely was, incontestably, new in the sense that none had been raised before the primary judge. The appellant clearly required the Court’s leave to raise them on appeal.

It may be accepted that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. The Full Court added that, “[w]here, however, there is no adequate explanation for the failure to take the point, and it seems of doubtful merit, leave should generally be refused”. The need to show that the grant of leave is, in the circumstances of the case, expedient and in the interests of justice endeavours to strike an appropriate balance between securing the role of the court at first instance, protecting the integrity of the appellate process, and meeting the needs of justice as understood within the judicial process.

The appellant had legal representation until shortly before the hearing before the primary judge. In our view, there has been no adequate explanation for the failure to raise the three entirely new grounds at that earlier date. Most importantly, for the reasons explained below, it seems to us that the proposed grounds have insufficient merit to justify a grant of leave. In these circumstances, leave to raise them should be refused.

Issues:-

The appellant submitted that there had been a constructive failure by the Tribunal to exercise its jurisdiction because:

(a) contrary to Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 (“Omar”), the Tribunal failed to consider a substantial or significant claim concerning the risk of harm to him if returned to his country of nationality independently of Australia’s non-refoulement obligations, being a claim that was clearly raised by him before the Tribunal;

(b) the Tribunal made two findings of fact that were not open on the evidence before it, being errors that were, relevantly, material to its decision; and

(c) the Tribunal’s decision was legally unreasonable, illogical and irrational as it was dependent on legally erroneous reasoning and involved a failure to engage with relevant evidence before the Tribunal.

Consideration:-

Ground 1 - The Omar ground

It may be accepted that, in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error: see Omar.

Reading the Tribunal’s reasons as a whole, we would not conclude that the Tribunal failed to consider the appellant’s claims concerning the risk of harm that he faced if returned to Zimbabwe independently of his claim concerning Australia’s non-refoulement obligations. We do not consider that the fact that the Tribunal’s reasons include some possibly inapt headings is sufficient to qualify the significance of the substance of the Tribunal’s reasons.

First, the Tribunal’s reasons for its decision  show that the Tribunal understood the effect of the Full Court’s decision in Omar, including its implications for the Tribunal in making its own decision on review of a decision under s 501CA(4)(b)(ii) of the Act.

Secondly, the Tribunal’s reasons demonstrate that the Tribunal acknowledged and understood the appellant’s claims about the risk of harm he faced in Zimbabwe because of his Ndebele ethnicity, affiliation with the MDC, and the time he had spent in Australia. The Tribunal specifically referred to CVRZ’s SFIC, noting that it “contain[ed] ... commentary in relation to [CVRZ’s] fear of harm in the event of his removal to Zimbabwe”. In this context, the Tribunal set out that part of the SFIC that relevantly concerned “the human consequence” for the appellant of his return to Zimbabwe.

Thirdly, the Tribunal’s reasons demonstrate that it assessed CVRZ’s claims about human consequences by reference to the evidentiary material before it. As it happened in CVRZ’s case, this material was not only relevant to those consequences, independently of any international non-refoulement obligations that Australia might owe, but was also relevant to the existence of those international obligations. The result was that the Tribunal’s assessment of the cogency and effect of this particular evidentiary material was relevant not only to the Tribunal’s consideration of whether CVRZ would face the personal risks of harm as he claimed but also whether, as regards CVRZ, Australia owed any international non-refoulement obligations. As Omar indicates, the determination of both these issues might bear on whether CVRZ’s claims gave rise to “another reason” within s 501CA(4)(b)(ii) of the Act as to why the visa cancellation decision should be revoked.

CVRZ failed to satisfy the Tribunal that the relevant evidentiary material supported the case he sought to make about the human consequences for him of return to Zimbabwe such as to provide “another reason”, within the meaning of s 501CA(4)(b)(ii).

Having regard to the way in which this and the non-refoulement claims were made by CVRZ and considered by the Tribunal, the Tribunal did not offend any aspect of Omar, the effect of which the Tribunal clearly recognised. That is, the Tribunal properly considered the evidentiary material relevant to the different claims, concluding first that the factual basis of the human consequences claim was not made out, and secondly, by reference to additional material, that Australia did not owe any non-refoulement obligation with respect to CVRZ.

For the foregoing reasons, the appellant’s first proposed ground has no merit.

Ground 2 - No evidence ground

As will have been seen, this ground turned on the appellant’s submission that there was no probative evidence to support the Tribunal’s statement of its reasons that “[a]s a citizen of [Zimbabwe], [CVRZ] will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Zimbabwe” in so far as that statement related to “economic support”. Paragraph [324] was in the following terms:-

"The Applicant arrived in Australia from Zimbabwe in his mid-20s. There are no significant or substantial language or other cultural barriers to the Applicant’s return and reestablishment in Zimbabwe. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Zimbabwe."

A footnote at the end of the second sentence referred to cl 14.5(1)(b) of Direction 79 and another footnote at the end of the last sentence referred to cl 14.5(1)(c).

Reference to the place of [324] in the Tribunal’s reasons and to cl 14.5(1) of Direction 79 supports the view that, notwithstanding the differences noted by the appellant, the last sentence in the above passage was substantially the same in force and effect as the like statement considered in Guclukol. That is, in the last sentence of [324] the Tribunal was not saying that there would be any particular level of economic support available to CVRZ on his return to Zimbabwe. Rather, the Tribunal was doing no more than affirming that the appellant would have access to such economic support as was “generally available to other citizens of Zimbabwe” at the relevant time.

The Full Court in Guclukol saw no difficulty in the Tribunal’s approach with respect to the similar finding in that case. While we accept that each case depends on its particular circumstances, we too can discern no difficulty with the challenged finding in this case; and, indeed, the appellant accepted that part of his argument in support of this ground fell away if we reached this view of the effect of that finding. The present case is relevantly different from Viane in which the Tribunal made the much more specific finding that that Mr Viane and his family would have access to health and welfare services in American Samoa or Samoa although there was no objective evidence about their availability: see Viane.

As we have seen, the appellant’s further submission was that, even if we interpreted the last sentence of [324] in this way, there remained the difficulty that there was no evidence that the appellant would have access to economic support “at the same level as other citizens of Zimbabwe”. As already noted, counsel for the appellant sought to sow the seeds of doubt about this latter proposition by referring to evidence that the appellant might be treated differently because of his ethnic background and his mental health issues. It is relevant to note at this point, however, that the Tribunal rejected the appellant’s analysis of the political situation in Zimbabwe, particularly the appellant’s narrative of its adverse effect on the Ndebele. It should also be borne in mind that, although the DFAT Country Information Report referred to the lack of adequately resourced mental health services and the fact that “many persons with mental health issues suffer from extremely poor living conditions”, there was no suggestion that whatever economic support was generally available to other Zimbabwean citizens was not also available to such people. In any event, what this discussion demonstrates is that the appellant’s submission at this point invites the Court to second guess the merits of the Tribunal’s decision: this would be to pursue a forbidden path, which we cannot do.

Ground 3 - The unreasonableness ground

It must be borne in mind that as French CJ stated in Li:-

"The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker." This principle was mentioned again in Stewart.

In effect, the appellant’s complaint under this ground is about the evaluative judgment made by the Tribunal, which depended on the weight it gave various items of evidence. In this case, it cannot be said that the Tribunal’s evaluation was not reasonably open to it, given that the weight to be given to the evidentiary material is generally a matter for the Tribunal. It was for the Tribunal, within the bounds of legal reasonableness, to weigh the evidence that it considered relevant to the appellant’s employment prospects in Zimbabwe. We are not persuaded that it exceeded those bounds in this case.

For these reasons, there is no merit in proposed ground 3.

Conclusion:-

For the foregoing reasons, we would order that CVRZ’s application for leave to raise grounds 1, 2 and 3 of the further amended notice of appeal be refused, and that the appeal be dismissed, with costs.

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Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 (9 November 2021)

Intro:-

There are two proceedings before the Court. The first proceeding is an appeal by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Acting Minister) from orders made by a judge of the Court on 23 December 2020 (CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855). The second proceeding concerns two grounds in an Amended Originating application in the original jurisdiction of the Court.

The appeal and Grounds 5 and 5A of the application raise similar issues concerning decisions made, in the case of the appeal, by the Acting Minister and, in the case of the application, by the Minister under s 501A(2) of the Migration Act 1958 (Cth) (the Act) and the construction and application of that subsection and, in particular, the condition in s 501A(2)(e) dealing with the national interest.

Facts:-

CWY20

The respondent to the Acting Minister’s appeal is described as CWY20.

The respondent is a national of Afghanistan and he arrived at Christmas Island in July 2013. He was taken into immigration detention. On 21 August 2013, he was granted a Bridging E (Class WE) visa and released into the community.

In December 2013, the respondent was charged with multiple offences of a sexual nature against children and he was remanded in custody. His Bridging visa was cancelled under s 116 of the Act.

On 3 March 2014, the respondent was convicted on seven separate counts involving indecent assaults on young females. He was sentenced to a total term of imprisonment of 56 months, with a fixed term of 14 months imprisonment. After the respondent had served his sentence, and while he was in immigration detention, he applied for a Safe Haven Enterprise (Class XE) visa. On 20 July 2017, a delegate of the then Minister for Home Affairs refused the respondent’s application. The respondent sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 25 October 2017, the Tribunal set aside the delegate’s decision. The Minister then decided to set aside the Tribunal’s decision under s 501A(2) of the Act, but this decision was subsequently quashed following legal proceedings.

On 16 July 2020, the Acting Minister made another decision to set aside the Tribunal’s decision under s 501A(2) of the Act and it is this decision which was the subject of the application for judicial review considered by the primary judge.

After setting out a number of introductory matters relevant to the respondent’s application and addressing the conditions in s 501A(2)(c) and (d), that is, the character test which the respondent clearly failed to pass, the Acting Minister turned to consider the national interest.

The Acting Minister commences his consideration of the national interest by noting that the national interest is not defined for the purposes of s 501A and by noting the guidance offered by the authorities about the meaning of the concept of national interest as follows:

(1) The national interest is a different concept to the public interest;

(2) The decision as to what is or is not in the national interest is entrusted by the Act to the Minister to determine according to his or her own satisfaction which must be attained reasonably (Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 188 FCR 326 (Madafferi)); and

(3) In considering the national interest under s 501A(2), the Minister may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant passes the character test and the crime or crimes may be of such seriousness as to found the satisfaction that it is in the national interest that a person’s visa be cancelled (Madafferi at [86]; Minister for Immigration and Multicultural Affairs v Gunner [1998] FCA 831; (1998) 84 FCR 400 at 409 (Gunner); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson) at [79] per Gaudron J).

The Acting Minister states that he had regard to the representations made by the respondent’s representative. He then expresses the conclusion that matters of national interest include, among other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct and any disposition imposed by the Court in respect of that conduct and that matters of national interest can include a consideration of the risk of a person reoffending and the harm which could result if such a risk eventuated.

The Acting Minister then turned to consider the nature and seriousness of the respondent’s criminal conduct, the risk that he would reoffend and the extent of the likely harm should he do so. It is not necessary for the determination of the issues on the appeal to set out the details of the Acting Minister’s consideration of these matters. It is sufficient to note that the Acting Minister concluded that it was in the national interest to refuse to grant the respondent’s application for a visa and that there is no reference in this part of the Acting Minister’s written reasons to Australia’s international non-refoulement obligations.

The Acting Minister said, having found that the respondent did not pass the character test and that it was in the national interest to refuse to grant the respondent’s visa, he would then address his discretion “to refuse to grant [the respondent’s] visa, taking into account factors that I considered weighed against and in favour of refusing [the respondent’s] visa”. In that context, the Acting Minister considered the following matters: (1) his assessment of the expectations of the Australian community as to whether the respondent should hold a visa; (2) the relevance of, impact or effect of Australia’s international non-refoulement obligations; (3) the effect on the respondent’s family in Afghanistan (i.e., a spouse and five children) of a decision to refuse the respondent’s application for a visa and his continuing detention; and (4) the strength, nature and duration of the respondent’s ties to Australia.

The Acting Minister then set out his conclusions. He referred to “countervailing considerations” which he said included non-refoulement obligations. The Acting Minister said that he had regard to the limited length of time in which the respondent has made a contribution to the Australian community, the resulting impacts of prolonged detention and the impact of a refusal decision on the respondent’s family unit in Afghanistan.

Decision of Primary Judge

The primary judge said that, in the particular circumstances of the case before him, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Acting Minister and the findings which the Acting Minister made. His Honour held that what he described as the “very serious consequence for Australia” of a decision by the Acting Minister to refuse to grant the respondent a visa, being that the respondent would be refouled in breach of Australia’s obligations under international law, had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). His Honour immediately went on to say that ultimately, however, it would be a matter for the Acting Minister to determine whether or not, despite putting Australia in breach of its obligations under international law, it was nevertheless in the national interest to refuse to grant the respondent a visa (PJ at [119]).

The primary judge said that whilst the seriousness of the respondent’s criminal conduct, the sentence he received, the risk that he would reoffend and the harm to the Australian community if such risk eventuated are all matters which could be considered by the Acting Minister in his assessment of the national interest, so are the implications of Australia breaching its non-refoulement obligations and returning a person to his country of origin where there was an accepted risk that he would be killed. His Honour referred to a number of authorities in which it had been recognised that Australia’s international reputation and standing fall within the ordinary meaning of the expression “national interest”: Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 at [45] per Kenny J; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959 at [33] per Tamberlin J; Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [91]. His Honour also referred to the observations of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh) at 291 concerning the significance to be accorded to the ratification by Australia of an international convention.

The primary judge said he found that, in the particular circumstances of this case, Australia’s international obligations relating to non-refoulement are an important part of the national interest for the purposes of s 501A(2) of the Act. His Honour’s use of the word “found” is not accidental. The case was not argued before him as a failure to take into account a mandatory relevant consideration and his Honour’s conclusions were clearly based on the particular circumstances of the case.

The primary judge considered that the structure of s 501A(2) was significant in that it highlighted the distinct and separate pre-conditions to the exercise of the Acting Minister’s power to refuse to grant a visa to a person. His Honour said the following (at [134]):-

... On the proper construction of s 501A(2), and having regard to the Acting Minister’s findings that refusing the applicant a visa and returning him to his country of origin would put Australia in breach of its non-refoulement obligations and expose the applicant to the risk of being killed, the Acting Minister, acting reasonably and with a correct understanding of the law, ought to have addressed those matters at an earlier stage of the decision-making process and before he addressed his residual discretion. Having regard to Australia’s reputation in the international community and its obligations under international law, breach of Australia’s non-refoulement obligations and the ramifications thereof were relevant to the Acting Minister’s assessment of the national interest at an earlier stage of the decision-making process. ...

The primary judge held that the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis and that the error could be described alternatively as reasoning unreasonably, or failing to act upon a correct understanding of the law (PJ at [136]).

The primary judge said that the stage at which the Acting Minister considered the implications of Australia acting in breach of its international non-refoulement obligations was significant. Had the Acting Minister considered Australia’s breach of its non-refoulement obligations as part of the national interest, he may have given the national interest a different weight or, in the alternative, he may have reached a different conclusion as to whether he was satisfied that the refusal was in the national interest. The Acting Minister’s misunderstanding of the concept of national interest gave rise to a possible distortion in the subsequent balancing exercise (PJ at [136]–[137])

QJMV

The applicant in the proceeding is described as QJMV and the respondents are the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and the Commonwealth of Australia.

The following facts are taken from the documents before the Court and are not in dispute. The applicant is a citizen of Afghanistan and between July 2011 and February 2020, he lived in Australia as the holder of a permanent residence visa being first, a Protection (Class XA) (Subclass 866) visa and then a Subclass 155 Resident Return Five Year visa.

On 6 February 2020, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act. On 7 May 2020, the Tribunal set aside the delegate’s decision and decided not to exercise the power in s 501 of the Act to cancel the applicant’s visa.

The reason the applicant does not pass the character test is briefly, but for present purposes, adequately, explained by the Tribunal as follows:

In late 2015 QJMV was found guilty of two charges of ‘Indecent act with child under 16’, relating to an incident that occurred on 26 January 2015. The Court dealt with QJMV’s offending without conviction and by imposing an 18-month Community Corrections Order (“CCO”). He was subsequently convicted in April 2017 of contravening the CCO and two counts of ‘Fail to comply with reporting obligations,’ which was dealt with by way of a fine;

The Minister’s reasons in the application are structured in a similar way to the Acting Minister’s reasons in the appeal.

The introduction is followed by a discussion of whether or not the applicant meets the character test. The Minister then considers the national interest and the directions he gives himself about the concept of the national interest are, for all intents and purposes, the same as the directions the Acting Minister gave himself in the decision which is the subject of the appeal.

The Minister considers the nature and seriousness of the applicant’s criminal conduct, the risk of the applicant reoffending and the extent of the likely harm should he do so. It is not necessary for me to set out the details. It is sufficient to note that the Minister concluded that it was in the national interest to cancel the applicant’s visa and that there is no reference in that part of his reasons to the implications of Australia breaching its non-refoulement obligations.

The Minister then describes the meaning of the discretion in exactly the same way as the Acting Minister did in the decision which is the subject of the appeal. The Minister considers the following matters in the context of the discretion: (1) the best interests of the applicant’s four minor children who, with his spouse, are resident in Afghanistan and how they might be affected by the cancellation of his visa; (2) the Minister’s assessment of the expectations of the Australian community as to whether the applicant should hold a visa; (3) the strength, nature and duration of the applicant’s ties to Australia; (4) the impact of the cancellation of the applicant’s visa on Australian business interests; (5) the impact of the cancellation of the applicant’s visa on those affected by his offending; (6) the impediments the applicant will face if he is removed from Australia and returned to Afghanistan; and (7) Australia’s international non-refoulement obligations.

Issues:

1) CWY20 - it is alleged that the primary judge erred in fact by finding that the Acting Minister deferred consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process and in failing to find that the Acting Minister considered the implication of Australia breaching its international obligations in assessing the national interest, but concluded that it was not material to his assessment of the national interest

2) QJMV - The applicant submitted that the Minister must set aside the original decision and cancel a visa that has been granted to a person if each of the matters in s 501A(2)(c), (d) and (e) are satisfied and there is no discretion to refrain from setting aside the original decision and cancelling the visa. In other words, once the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest, then the Minister must set aside the original decision and cancel the visa. The applicant submitted that the Minister clearly proceeded on the basis that he had a discretion to cancel the applicant’s visa taking into account the factors that he considered weighed against and in favour of cancelling the applicant’s visa. In so doing, the Minister misunderstood the law and that constituted a jurisdictional error.

Consideration:-

Is there a discretion under S 501A(2) of the Act?

The respondent in the appeal did not raise this argument before the primary judge. His Honour proceeded on the basis that there is a discretion after the matters in s 501A(2)(c), (d) and (e) have been considered. He identified (correctly in my view) the difference between the discretion under s 501A(2) and the evaluative exercise or task required by s 501(2)(e). His Honour said (PJ at [79]):

"I do not consider that the Minister’s residual discretion whether or not to exercise the power of refusal or cancellation is of a similar character to the satisfaction which has to be found as to whether or not refusal or cancellation is in the national interest. The former may properly be described as a discretionary power. The latter is of a different character. In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment, as the plurality acknowledged in Graham at [57]. ..."

It is clear that the Minister, whose decision is the subject of the application, proceeded on the basis that there is a discretion under s 501A(2) of the Act. The Minister said:-

"Having found that [the applicant] does not pass the character test and that it is in the national interest to cancel [the applicant’s] visa, and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to cancel [the applicant’s] visa, taking into account factors that I considered weighed against and in favour of cancelling [the applicant’s] visa ..."

The Acting Minister used almost identical words in his reasons which are the subject of the appeal.

I have reached the conclusion that there is a discretion under s 501A(2) of the Act.

At what stage in the decision-making process did the acting ministes consider Australia's non-refoulment obligations?

In the appeal, the primary judge said that he rejected the Acting Minister’s contention in his supplementary submissions that it should be inferred from the Acting Minister’s statement of reasons that he did turn his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether or not it was in the national interest to refuse the visa, but concluded that it was not material to his assessment of that particular subject. His Honour said that there was nothing in the statement of reasons which supported such an inference (PJ at [135]). The primary judge went on to say that, in any event, the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of its international obligations was immaterial to his assessment of Australia’s national interest. These two conclusions are challenged in the grounds of appeal, the first in Ground 1A and the second in Ground 2B. The essence of the Acting Minister’s argument seems to be that the primary judge ought not to have found that the Acting Minister did not consider the significance of Australia’s non-refoulement obligations in his assessment of the national interest, albeit he concluded that they were not material to his assessment of that issue.

Earlier in his reasons, the primary judge explained his reasons for reaching the conclusions he did (at [25]–[26]):

25 The Acting Minister provided a detailed statement of reasons in support of his decision. The structure of the statement of reasons leaves no room to doubt that the Acting Minister proceeded on the basis that Australia’s non-refoulement obligations were only relevant to the question whether he should exercise his residual discretion to refuse to grant the visa. The statement of reasons indicates that the Acting Minister (correctly) viewed his decision-making task under s 501A(2) as involving several separate and distinct stages, including separate stages relating to good character, national interest and his residual discretion.

26 It is evident from that part of the Acting Minister’s reasons relating to his assessment of the national interest that he gave no consideration in that assessment to the fact that he accepted that, in the applicant’s circumstances:

(a) Australia owed international non-refoulement obligations;

(b) refusal of the visa meant that the applicant would be removed to his country of origin in breach of those obligations; and

(c) there was a risk that the applicant would be killed if he returned to his country of origin.

The Acting Minister submitted that the primary judge’s error was in treating the statement of reasons as though it represented a “series of siloed decisions” about each of the statutory integers from which it was legitimate to infer that, because non-refoulement obligations were dealt with in the later section dealing with the discretion, they were not considered in the earlier section dealing with the national interest.

The Acting Minister submitted that it should not be inferred from the absence of reference in the national interest section of his reasons to Australia’s non-refoulement obligations that he excluded them from consideration. The proper inference, in all the circumstances, is that he chose not to give weight to Australia’s non-refoulement obligations in relation to the national interest.

I reject the Acting Minister’s submissions.

The starting point is that the Acting Minister asserts that the proper inference is that he considered Australia’s non-refoulement obligations in his assessment of the national interest. That requires on his part an active intellectual process (see the discussion in Carrascalao at [45]–[46]) and active consideration is not to be equated with merely reading a document, although the latter is clearly relevant (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [29]). It is true that active consideration is not necessarily measured by the amount of time spent on the issue or the detail or extent of the reasons dealing with the issue. Nevertheless, to assert that it is not significant that the absence of reference to a matter in reasons, or, in this case, in a particular part of the reasons, is because although the matter was actively considered, it was considered irrelevant, is really to proceed by assuming the answer sought.

The Acting Minister’s written reasons follow a logical structure and are detailed and closely reasoned.

I refer to the summary of those reasons set out above (at [36]–[42]). I reiterate and add the following:-

(1) The Acting Minister dealt with the national interest in the manner set out above (at [37]–[39]), before he said:-

In sum, having regard to the above, including [the respondent’s] criminal history and the risk to the Australian community, I conclude that it is in the national interest to refuse to grant [the respondent’s] visa application.

There is no reference in the Acting Minister’s reasons to that point to Australia’s non-refoulement obligations and no indication that the Acting Minister gave active consideration to those obligations to that point.

(2) The Acting Minister then proceeded to consider the discretion under s 501A(2) in the manner summarised above (at [40]).

(3) Having set out the matters he considered were relevant to the discretion, including Australia’s non-refoulement obligations, the Acting Minister then set out his conclusions. He reiterated his conclusions that the respondent did not pass the character test and that it was in the national interest that the respondent’s visa be refused “[h]aving given full consideration to all of the information before me in this case”. This latter reference is a reference to the information he considered in that part of his reasons dealing with the national interest and not a reference to those matters and the matters he considered were relevant to the discretion, including Australia’s non-refoulement obligations. That is clear from the context. First, having made that statement, he immediately proceeds in three paragraphs to summarise the matters previously discussed in that part of his reasons dealing with the national interest. Secondly, the Acting Minister went on to say that the “above consideration”, which is a reference to his conclusion with respect to the national interest, “outweighed the countervailing considerations in [the respondent’s] case including non-refoulement obligations”.

For these reasons, the primary judge’s conclusion that the Acting Minister did not give active consideration to Australia’s non-refoulement obligations in his assessment of the national interest is correct. This is a factual finding and I do not consider the reference to Carrascalao, a different case with different reasons and issues, to be of assistance.

Conclusion:-

The primary judge was clearly right to conclude that the step in the decision-making process at which the Minister considers the implications of Australia breaching its non-refoulement obligations is important. He noted, correctly in my view, that had the Acting Minister considered the implications of Australia breaching its non-refoulement obligations as part of his consideration of the national interest, there was at least a possibility that he may have given different weight to the national interest when balancing it with other considerations which were relevant to the exercise of his discretion. Furthermore, as the primary judge noted (PJ at [136]) there was at least a possibility that the Acting Minister may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest and, if the precondition in s 501(2)(e) to the exercise of his power was not met, he would not have progressed to consider his residual discretion.

For these reasons, the appeal must be dismissed.

In those circumstances, the same conclusion follows in the case of the application as follows in the case of the appeal. In the application, that is that the Minister made a jurisdictional error in his decision made on 7 December 2020 in that he did not attain his state of satisfaction under s 501A(2)(e) as to the national interest reasonably.

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The Queen v Rolfe [2021] HCA 38 (10 November 2021)

Intro:-

This is in regard to an appeal from the Supreme Court of the Northern Territory.

Facts:-

The respondent is a member of the Police Force of the Northern Territory with the rank of Constable. He has been charged with one count of murder[1]; in the alternative, manslaughter[2]; and in the further alternative, engaging in a violent act which caused the death of a person[3]. He has pleaded not guilty.

On 9 November 2019 the respondent and a number of other police officers were deployed from Alice Springs to assist in the arrest of Charles Arnold (Kumanjayi) Walker ("the deceased"). A warrant had issued for his arrest for breaching a condition of an order for a suspended sentence. The respondent and another officer entered the house where the deceased was present. The respondent directed the deceased to put his hands behind his back. The deceased did not do so. He stabbed the respondent in the left shoulder with a pair of scissors which had been secreted. The respondent shot the deceased three times. Either or both of the second and third shots later proved to be fatal.


The provisions of the Police Administration Act 1978 (NT)

Section 148B, "Protection from liability", appears in Div 2 of Pt VIIA of the Police Administration Act 1978 (NT) ("the PA Act"). It is in these terms:

"(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act.

(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

(3) In this section:

exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function."

Section 124, "Arrest of person where warrant issued", appears in Div 3 of Pt VII, which Part is entitled "Police powers". It provides:

"(1) A member of the Police Force may, without warrant, arrest and take into custody any person who the member has reasonable cause to believe is a person for whose apprehension or committal a warrant has been issued by any Supreme Court Judge, Local Court Judge or justice of the peace.

(2) Where a member arrests a person under subsection (1), the member shall, as soon as reasonably practicable thereafter, produce or cause to be produced to the person the warrant authorising his apprehension or committal, where the person has been apprehended in pursuance of a warrant authorising his apprehension, and the person shall be charged with the offence specified in the warrant."

Part II of the PA Act is entitled "Police Force of the Northern Territory". Section 5 is located in Div 1 – "Establishment of Police Force" – of Pt II. It provides:

"(1) There is established by this Act the Police Force of the Northern Territory.

(2) The core functions of the Police Force are:

(a) to uphold the law and maintain social order; and

(b) to protect life and property; and

(c) to prevent, detect, investigate and prosecute offences; and

(d) to manage road safety education and enforcement measures; and

(e) to manage the provision of services in emergencies."

Section 25, "Function of members", is in Div 3 of Pt II and provides:

"Subject to this Act, a member shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on him."

Section 26(1), which follows, relevantly provides that:

"A person shall not exercise or perform any of the powers, functions or duties conferred or imposed upon a member of the Police Force by a law of the Territory unless he or she has taken and subscribed an oath in the form in the Schedule."

The Full Court

At issue before the Full Court, as relevant to this application, was whether s 148B applied to and provided protection for the functions stated in s 5. Southwood J and Mildren A-J reasoned that, by virtue of the oath members of the Police Force take, and the fact that the Police Force can only act through its members, its members are under an obligation and have a duty to carry out the core functions stipulated in s 5 of the PA Act[4]. Section 25, in its reference to duties, obligations, powers and privileges conferred or imposed on police officers "by any law in force in the Territory", includes the common law and statutory law[5], they observed. Their Honours concluded[6] that s 5, when considered in the light of s 25 and the oath taken by a member of the Police Force, makes it part of a police officer's functions and duties to protect life and prevent offences. So understood, s 148B applies to those s 5 functions[7].

Kelly and Blokland JJ and Hiley A-J reasoned likewise. Their Honours held that functions of the Police Force were functions of its members[8]. Whilst some of the core functions in s 5(2) would be performed at an organisational level, some can only be performed by individual members of the Police Force, including two of the most important functions: protecting life and property, and preventing offences. In their Honours' view the protection afforded by s 148B did extend to the performance of the functions in s 5 of the PA Act[9].

Issue:-

Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"

Consideration:-

The evident purpose of s 148B is to provide protection from liability, including for a criminal act, provided that the person committing the act does so "in the exercise of a power or performance of a function" (or in the purported exercise or performance) under the PA Act, and does so in good faith. It contemplates that the power exercised or function performed will be of a kind which may result in the commission of a crime or a civil wrong, which may be contrasted with powers or functions which are of a more general character and do not require any special authority[10].

Section 124 confers a power of arrest upon warrant on a member of the Police Force. It appears in Pt VII of the PA Act, which is headed "Police powers", which heading is to be read as part of the PA Act[11]. Whilst the provisions of s 55 of the Interpretation Act 1978 (NT) do not deal with the heading of a section in the same way[12], a modern approach to statutory construction often takes account of headings, much in the same way as use is made of extrinsic materials[13]. In this regard, s 25 is headed "Function of members".

In any event, s 25 clearly is concerned to confer powers and functions on members of the Police Force. It provides that a member of the Police Force is to perform the "duties and obligations" and have the "powers and privileges" that any law in force in the Territory confers or imposes on a member. It is to be read with s 26, which provides that a person shall not exercise or perform any of the "powers, functions or duties" conferred or imposed upon a member of the Police Force by a law of the Territory unless the prescribed oath is taken and subscribed.

Section 5 is not a provision of this kind. Its text and its location in Div 1 of Pt II, which is concerned with the establishment of the Police Force[14], suggest that its purpose is to identify the principal functions of the Police Force, but not to confer any particular power or function on its members. Reading s 5 with s 25 does not alter this construction. The reference in s 25 to a law in force in the Territory is to a law which confers or imposes powers and s 5 is not of this character.

True it is that powers such as those of prevention of offences and the apprehension of persons suspected of offences are intrinsically within the powers and functions of a police officer, as the respondent submits, but that is to say no more than that the common law recognises this to be the case. It is correct, as the respondent points out, that s 5 reflects certain of the police powers recognised by the common law. Importantly though, s 5 does not confer those powers, whereas s 25 and s 124 do. That they do so tends against a construction that s 5 was intended to confer the same or similar powers or functions.

The reference in s 25 to "any law" encompasses both the common law and statutory law which applies in the Northern Territory. The common law powers include those to prevent the commission of a crime[; to apprehend a person suspected of having committed an offence; and to prevent breaches of the peace[. The common law power to arrest without warrant notably has been replaced with a statutory power (s 123 of the PA Act). The exercise of the common law powers, like the statutory powers, is subject to constraints, such as doing only that which is reasonable and necessary.

The text and legislative history of s 148B do not point to the application of s 148B to the performance by members of the Police Force of the core functions under s 5(2). When s 148B was introduced in 2005, it extended protection, from civil liability, to members of the Police Force. It provided that such a person was not civilly liable for an act done "in the performance or purported performance of duties" as a member. It was amended in 2016[20] to its present form, which notably replaces "member" with the more general reference to "person", and refers to the "exercise of a power or performance of a function" under the PA Act.

The 2016 amendments to s 148B coincided with the insertion of Div 7AA in Pt VII, which dealt with blood testing for infectious diseases. The Division was concerned with the possible transmission of infectious diseases to members of the Police Force and provided that an "affected member" may apply to a "senior member" who may grant a "disease test approval" by which a blood sample was authorised to be taken from "the transferor", the person from whom it is suspected blood or another substance was transferred to the affected member.

The taking of a blood sample involved persons such as doctors and nurses, who were now performing a special public duty. It was obviously thought necessary to protect them from civil or criminal liability which might arise from their actions[22], hence the widening of the reference in s 148B to "person". The term "function" is now apt to refer to duties undertaken by members of the Police Force and these other persons. The term "power" remains appropriate to members of the Police Force.

Order:-

There should be a grant of special leave to appeal. The appeal should be allowed and order 3 of the Full Court of the Supreme Court of the Northern Territory set aside. In lieu thereof, Question 3 should be restated as:

"Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"

and it should be answered:

"No, the relevant powers and functions to which s 148B of the Police Administration Act 1978 (NT) applies are those of the common law, which s 25 of the Act confers, and the power of arrest in s 124 of the Act."

 

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Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264 (29 October 2021)


Intro:-

The applicant, Raed Hariz, seeks judicial review in the supervisory jurisdiction of this Court of an order for costs made in the District Court.

Facts:

On 9 March 2020 Judge Smith SC (the primary judge) heard an appeal by the applicant from a conviction in the Local Court. The appeal was upheld and the conviction quashed. Immediately following delivery of that judgment, senior counsel appearing for the applicant foreshadowed a costs application. The judge upheld the application and, on 28 August 2020, awarded costs of the proceedings in the Local Court in an amount of $9,000 and costs of the proceedings in the District Court in an amount of $12,000.

Before delivering judgment on 28 August 2020, the judge noted that he had limited material before him as to the amount of costs incurred. Shortly after the delivery of judgment, the matter having been stood in the list, counsel then appearing for the applicant raised an issue as to the quantification of costs. Pursuant to a motion filed by the applicant on 5 November 2020, to which the respondent consented, the orders of 28 August 2020 were set aside and directions given for service of evidence as to quantification of costs, in advance of a hearing on 5 March 2021. No such evidence was served, and when the matter came on for hearing the applicant, then unrepresented, sought an adjournment to obtain the opinion of a costs assessor. The application was refused. Only then did the applicant tender a bundle of invoices, referred to below, which were admitted without objection. A second judgment was handed down on 30 April 2021. The orders made were as follows:

“(1) The respondent to pay the applicant’s costs of the proceedings in the Local Court in the amount of $9,000.

(2) The respondent pay the applicant’s costs of the proceedings in the District Court in the amount of $12,000.

(3) The applicant is to pay the respondent’s costs incurred in these proceedings after 28 August 2020 as assessed or agreed.”

On 18 August 2021 the applicant issued a summons for judicial review in this Court.

The summons was some three weeks out of time, but no objection was taken by the Director to an extension of time, which extension was granted at the commencement of the hearing.

There is no appeal from a judgment of the District Court in its criminal jurisdiction on appeal from the Local Court. Further, there is a privative clause contained in the District Court Act 1973 (NSW), s 176, which precludes any form of review by this Court other than for jurisdictional error. Counsel for the applicant accepted the limitation, but submitted that each of the grounds identified a jurisdictional error. While in their terms the grounds used language which may engage forms of jurisdictional error, it is necessary to identify with greater precision the scope of the jurisdiction of the District Court and what is meant by “jurisdictional error” in that context.

Issues:-

a) did His Honour fail to exercise the Court’s jurisdiction, by failing to have regard to the evidence and submissions provided by the parties; or, alternatively,

b) was His Honour’s decision unreasonable, or plainly unjust; and

c) was the plaintiff denied procedural fairness in circumstances where the first defendant did not seek an order for costs, and his Honour did not raise the question with the plaintiff.”

Consideration:-

Jurisdictional error – District Court

Much of the jurisprudence concerning the nature of jurisdictional error is found in cases reviewing administrative decisions, often decisions made by officers of the Commonwealth. Findings made in relation to administrative decision-making must be applied cautiously in relation to review of a court exercising judicial power. As the High Court explained in Craig v South Australia, rejecting the reasoning of Lord Reid in Anisminic Ltd v Foreign Compensation Commission which was understood to discard the distinction between jurisdictional error and error within jurisdiction as “not intended to refer to a court of law”:

“That distinction has not, however, been discarded in this country and, for the reasons which follow, we consider that Lord Reid’s comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari. In that regard, it is important to bear in mind a critical distinction which exists between administrative tribunals and courts of law.”

With respect to the latter, the joint reasons continued:

“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction.”

Further, although the concept of “jurisdictional error” can be described in general terms embracing concepts such as procedural unfairness and relevant and irrelevant considerations, the scope of the authority given to the court or tribunal must ultimately be identified by reference to the statutory context in which it operates, as well as by reference to institutional considerations which may distinguish courts from tribunals and some tribunals from others.

Applied in the present circumstances, the decision sought to be reviewed is a judgment of the District Court, being a court of record. There is no doubt that it had been exercising the criminal jurisdiction conferred on it under Pt 4 of the District Court Act in hearing an appeal from the Local Court. Further, there was no dispute as to the nature of the jurisdiction with respect to costs: it was that derived from s 28 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), which relevantly provides:

28 Miscellaneous powers
....
(2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.

(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

Grounds 1 and 2

Ground 1 asserted that the primary judge had failed “to have regard to” either “the evidence” or the “submissions provided by the parties”. In the event that that could not be established, it was submitted that the amount awarded was “unreasonable, or plainly unjust”. These two grounds were dealt with together at the hearing as being alternative complaints.

The alleged error in failing to “have regard to the evidence” appears to confuse a number of ideas. A ground of judicial review of administrative decision-making is sometimes expressed as a failure to have regard to a relevant consideration: see, for example, Minister for Aboriginal Affairs v Peko-Wallsend Ltd. As Mason J explained, “[t]he ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision”. Those matters, if not expressly stated, must be derived from the subject matter, scope and purpose of the Act. As explained above, the purpose of an award of costs requires the judge to consider what would be fair and reasonable professional costs to be incurred in the circumstances of the case. However, there is not, and could not be, a suggestion that the judge did not give attention to that factor. It was the criterion which he stated he was applying and undoubtedly applied.

A major problem for the applicant was that the evidence upon which he relied was incomplete, confusing and not properly proved. The “evidence” constituted a bundle of invoices from lawyers who had from time to time represented the applicant. The primary judge set out in his second judgment a table showing the amounts of the invoices which totalled $238,516. He identified the invoices by numbers, 1-11. The judge dealt with the invoices globally and individually. He placed them in one of two categories, namely those in respect of which he was “not satisfied that [the applicant] has in fact incurred these costs in respect of this matter” and, secondly, “to the extent that any costs do relate to this matter, I am satisfied that they are excessive”. Those factual findings were not and could not be challenged in this proceeding.

Counsel for the applicant referred to two particular matters, of which he said there was evidence, which the judge disregarded. The first was a bail application made by Mr Greg James QC. Items 1 and 2 on the judge’s list of invoices were tax invoices delivered by Mr James. The judge referred expressly to both invoices in his second judgment, repeating a finding made in his first judgment that “senior counsel was unnecessary.” The first item on the first invoice was appearance on a bail application made on 20 December 2018. However, the bail application was not limited to the charge in respect of which the conviction had been set aside by the District Court. There was no finding that the bail application was not made, nor that the applicant was not liable to pay counsel for appearing for him. Rather the judge concluded that the tax invoice provided no assistance in determining what expenses were reasonably necessary and what fee was reasonably appropriate in respect of each in the circumstances.

The second invoice relied upon in argument was an invoice delivered by a solicitor from Kings Law Group, Mr Reslan. The judge noted that the invoice charged for 28 hours of conferences, 9 hours of preparation and 286 emails, as well as a 6-hour court appearance on the costs application. It also recorded fees payable to a counsel who had not appeared in the matter. The judge may have been wrong as to the nature of the court appearance (it was said to have been the hearing of the appeal, not the costs application), but nothing turns on that; indeed it was the day on which the costs application was made. The short point is that the judgment contradicts the proposition that the judge failed to have regard to these aspects of the evidence.

The second and alternative manner in which the claim was presented was that the amounts awarded were so unreasonable as to demonstrate some legal error in the judge’s assessment. That ground is also untenable. The judge explained in his first judgment (and repeated in his second judgment) the basis on which he had assessed costs in an amount of $9,000 in the Local Court and $12,000 in the District Court. In each case he included what he described as “a reasonable amount of preparation” and fees at a daily rate with respect to the hearings. It is to be borne in mind that at no stage did the judge have before him any material other than the invoices, which, understandably, he deemed to be excessive, to determine what might constitute a fair and reasonable award of costs. The only basis upon which the amounts allowed could be described as manifestly unreasonable was by comparison with the tax invoices. That comparison itself was unhelpful. It is not for this Court, as it was not for the primary judge, to try to disentangle the different sets of criminal proceedings which appear to have been encompassed within the charges made by the lawyers. There was no standard demonstrated on the evidence which the primary judge must have taken into account, and failed to take into account. Without that, the claim of manifest unreasonableness has no standard against which the actual order can be measured. No level of unreasonableness has been established.

Ground 3

The final order made on 30 April 2021 was that the applicant pay the Director’s costs from 28 August 2020. That was an application of the “costs follow the event” principle. As the judge explained in his second judgment:

“Nothing in the invoices now relied on by Mr Hariz changes my view about the amount of costs that are just and reasonable. As Mr Hariz was unsuccessful in persuading me otherwise with evidence that he ought to have adduced prior to the date of that judgment, he should pay the respondent’s costs incurred since 28 August 2020 as assessed or agreed.”

The order was unremarkable, and the applicant does not suggest otherwise. Rather, ground 4 is based on the proposition that the applicant was not, and should not reasonably have been, on notice that such an order might be made. Further, even if a legal practitioner would have appreciated the risk of such an order, at the hearing on 5 March 2021 the applicant was unrepresented and, in accordance with authority in this Court, should have been warned before such an order was made.

As to the claim regarding the applicant’s lack of knowledge, there was no evidence before the Court to support the allegation.

As to what the primary judge should have done and failed to do, the applicant relied on the following statement by Emmett AJA in Dempsey v Director of Public Prosecutions:

“Procedural fairness normally requires a court to identify, for a person affected by its decision, any critical issue that is not apparent from the nature of the decision or the terms of the statutory power exercised. Such a court must also advise of any conclusion adverse to the person affected that would not obviously be open on the known material.”

As the Director submitted, the question is whether some obligation to advise was engaged in the present case.

The applicant’s submissions in this regard rested on three propositions. First, the Director did not expressly seek costs. Secondly, although a legal practitioner might have appreciated that costs would usually follow the event, the applicant was unrepresented at the hearing prior to the second judgment. Thirdly, it is exceptional for costs to follow the event in criminal, as opposed to civil, matters.

Further, whatever may be said about unrepresented litigants, the applicant was unrepresented only at the final hearing of his reopening application. He had been represented at the earlier hearing by counsel and had been represented by counsel when the first judgment was delivered, which led to the application to reopen the judgment with an opportunity to present further evidence. In my view it would have been both unnecessary and inappropriate for the judge to give the proposed advice. Failure to do so was not procedurally unfair.

Thirdly, any practice in relation to indictable cases is inapplicable in the summary context. The possibility of an adverse costs order was the very purpose of the applicant’s proceeding. The proceedings between the applicant and the Director were entirely incidental to the applicant’s success in appealing his criminal conviction and related only to costs. The reopening request related only to a costs order in his favour. The unsuccessful attempt to improve his position beyond that which he had achieved invited the adverse costs order which was in fact made.

The claim of procedural unfairness must demonstrate a material error. There was no plausible suggestion as to what might have been put had the opportunity been given and availed of. As the joint reasons of Kiefel CJ, Gageler, Keane and Gleeson JJ observed in MZAPC v Minister for Immigration and Border Protection:

“[1] This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.

[2] Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.”

In the present case, there was no realistic possibility that a different order might have been made had the opportunity for further submissions been proffered.

Conclusion:-

Each of the grounds proposed in the amended summons having been rejected, the summons must be dismissed. As proposed by the Director, the applicant must pay the Director’s costs in this Court.

Added a post 

Miraki v Griffith [2021] NSWCA 263 (29 October 2021)

Intro:-

This appeal relates to a claim for restitution in respect of four payments said to have been made by Ms Sepideh Miraki (Mrs Miraki).

Facts:-

The appellant, Sepideh Miraki, appealed from a decision of the District Court rejecting her claim for restitution in respect of four payments made for luxury Versace furniture and home accessories which were never delivered. The goods were ordered from a business run by Dominic Griffith. His son Joshua Griffith, aged 17 at the time the order was placed, assisted him in the business. The first two payments were made into an American bank account in the name of Dominic Gerard Groupe De Luxe Ltd.

The third and fourth were paid into Joshua’s personal account. All four payments were made by Barton Contractors Australia Pty Ltd, a company of which Mrs Miraki was formerly a director but not at the time of the payments. The claim was initially pleaded in contract. A claim in restitution was later pleaded against Joshua on the basis of a total failure of consideration. The District Court entered judgment in favour of Mrs Miraki against Dominic in the sum of $116,279.91 but rejected the claim against Joshua. Mrs Miraki appealed from that part of the decision.

The primary judge (Strathdee DCJ) found that Dominic was operating the business while Joshua was simply providing assistance under his father’s control and direction. The judge also found that Dominic controlled the bank account in Joshua’s name and used it as his own. Accordingly, her Honour accepted that Joshua did not receive any benefit from the first three payments and was not liable to make restitution. Her Honour did not determine the claim as to the fourth payment, accepting a submission by Joshua that, in the way in which the case was opened and conducted, that claim was taken to have been abandoned.

Issues:-

(1) whether Joshua obtained a benefit from any of the payments so as to be liable to make restitution of those amounts;

(2) whether the primary judge erred in not permitting the appellant to run her pleaded case concerning the fourth payment; and

(3) by notice of contention filed by Joshua, whether the appellant was entitled to restitution of amounts paid by the company, Barton Contractors.

Consideration:-

In relation to the first two payments deposited into the New York account, Mr Allen, who appeared for Mrs Miraki on the appeal, submitted that as Joshua had requested Mrs Miraki to pay the monies to Dominic’s account (by virtue of his name appearing on the invoice; and had supplied the account details so that the payments could be effected, those matters in some way resulted in Joshua benefitting in the requisite sense, such that he was liable to make restitution of those amounts.

If there were some evidence that Joshua had benefitted from the direction to pay money into the New York account because, for example, payment to the holder of that account in turn discharged some liability Joshua had to that person or entity, then it is possible that, in such circumstances, Joshua could have been held to be personally liable to make restitution to the payer. That would be on the basis that Joshua had been enriched or was benefitted by the discharge of a pre-existing liability to the controller or holder of the bank account to which he directed payment. But that was not this case and the pure act of direction did not generate a liability in Joshua. He neither received the payments nor was shown to have benefitted from their receipt by Dominic.

Mrs Miraki’s contention was that, prima facie, the receipt of funds in the CBA account to which he was not entitled rendered Joshua liable to make restitution to her in respect of those funds. This submission, however, needed to overcome the point made in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 at 673–674; [1988] HCA 17, where it was held that:

“The prima facie liability to make restitution is imposed by the law on the person who has been unjustly enriched. In the ordinary case of a payment of money, that person will be the payee. However, when the person to whom the payment is directly made receives it as an intermediary (e.g., as agent for a designated principal), there may be uncertainty about the identity of the actual recipient of the benefit at the moment of payment. If the circumstances are such that the intermediary is to be seen as being himself the initial recipient of the benefit, his prima facie liability will ordinarily be displaced when he has handed the money received on to the person for whom he received it. In such a case he has, in the event, not retained ‘the benefit of the windfall’ but been ‘a mere conduit-pipe’ (see per Collins M.R., Continental Caoutchouc & Gutta Percha Co v. Kleinwort, Sons & Co.) and ‘the only remedy is to go against the principal’: per Greene M.R., Gowers v. Lloyds and National Provincial Foreign Bank Ltd.” (footnotes omitted).

In the present case, the primary judge held that Joshua did not receive the benefit of the third payment. As I have pointed out above, it is implicit in that finding and in the entry of judgment against Dominic, which was referable to that payment (in addition to the first and second payments), that the primary judge must necessarily have held that Joshua received the third payment as a mere conduit or intermediary or, as it is sometimes put, had the benefit of a “payment over” defence: see K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (4th ed, 2021, LexisNexis) at [441]–[442]; AFSL at [8]. Expressed slightly differently, Joshua was not liable because, although payment was made into a bank account in his name, he did not appropriate the payment to his own benefit and thus was not enriched: see J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing) at 78, 384.

In making her finding that the third payment was not to Joshua’s benefit, notwithstanding that it was paid into the CBA account which was in his name, the primary judge looked to the substance rather than the form of the matter. This was entirely in accordance with settled authority: see Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 at 376; [1993] HCA 4; Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 54; (1993) 179 CLR 101 at 111; [1993] HCA 54; AFSL at [137].

Issue 2

The opening submissions created the impression that the amounts claimed were only the first three payments. It was open to the primary judge to conclude that the claim had been narrowed accordingly. In any event, Joshua did not receive any benefit from the fourth payment.

Issue 3

It also follows that it is not necessary to decide the Notice of Contention point, which was to the effect that if any restitutionary claim lay against Joshua, that claim was not one for Mrs Miraki to agitate but was a claim which Barton had, it being recalled that it was in fact Barton that had made the four payments: cf, Nikolic v Oladaily Pty Ltd [2007] NSWCA 252 at [97].

Some exiguous evidence was led to the effect that Barton was a company with which Mrs Miraki had a loan account, and it was submitted that her direction of Barton to make payments for the goods which she had ordered did not detract from her standing as a plaintiff to maintain the action for restitution.

The primary judge held that whether the monies were paid to Joshua and Dominic by Barton or Mrs Miraki was irrelevant. That observation was not correct. Mrs Miraki could only sustain a claim in restitution if she could demonstrate that the defendants were enriched at her expense. If it had been able to be established that the payments made by Barton in turn discharged an amount owed to Mrs Miraki on her loan account with the company, she probably would have had sufficient standing to pursue her claim. Whether that was so was not a matter upon which the primary judge made any finding. It was a matter for Mrs Miraki to establish given that, prima facie, it was Barton that was the source of the four payments the subject of the claim for restitution and therefore the party at whose expense any unjust enrichment had been obtained.

Had it been necessary to decide the question, I would have upheld the point raised by the Notice of Contention, namely that Mrs Miraki was not or had failed to establish that she was the proper plaintiff.

Conclusion:-

The appeal should be dismissed with costs.

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Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 (18 October 2021)

Intro:-

Mr Gurjit Singh has filed two summonses in the Court of Appeal seeking judicial review of Supreme Court Orders. The first was filed on 23 September 2021 and is directed to a decision made by Beech-Jones J on 14 September 2021. The second was filed on 1 October 2021 and is directed to a decision of Rothman J of the same day. Both of the decisions in the Common Law Division were made in a single proceeding, which is Mr Singh’s challenge to orders made by NCAT.


Facts:-

On 14 September 2021, Beech-Jones J made the following directions:

“THE COURT DIRECTS that:

(1) The third, fourth and fifth defendants to the summons be removed and replaced by the New South Wales Civil and Administrative Tribunal (NCAT).

(2) The Notice of Motion filed 14 September 2021 be returnable before the Registrar on Thursday, 16 September 2021.

(3) The plaintiff serve a copy of the Notice of Motion on the first and second defendants by email and advise them that the Motion is returnable before the Registrar on Thursday, 16 September 2021.”

Subsequently there were two directions hearings before registrars and a hearing before Campbell J. In oral submissions today Mr Singh has expressed some dissatisfaction with Campbell J, but no proceedings have been commenced relating to anything that his Honour did.

On 1 October 2021, Rothman J made the following orders:

“The Court Orders:

1. There is no arguable proposition for apprehended bias;

2. The summons is dismissed;

3. The plaintiff shall pay the costs of the defendant if any on an indemnity basis.”

The proceedings on their first return date in the Court of Appeal came before the Registrar. The Registrar made the following orders on 11 October 2021, which is last Monday:

“ORDERS MADE BY THE COURT

1. Note the Summons appears to be incompetent on the basis of Penson v Titan National Pty Ltd [2015] NSWCA 404.

2. Note that the applicant does not intend to substitute a leave application for the Summons.

3. Stood over to 18/10/2021 to show cause why the Summons should not be dismissed. as being incompetent.

4. The question of the substitution of the Secretary of Department of Communities and Justice for the fourth Respondent is stood over to 18/10/2021.

5. Registry notify parties.”

Subsequent to those orders, Mr Singh has filed a four page submission dated 17 October 2021 explaining why he contends that this Court has jurisdiction to hear and determine the matter, notwithstanding that he has proceeded by way of summons seeking judicial review.

Issue:-

The only question today is a pure question of law. It is whether Mr Singh by way of summons filed in the supervisory jurisdiction of the Supreme Court, rather than by way of summons seeking leave to appeal, can properly bring his complaints about both of those decisions. Mr Singh has made it abundantly clear that he does not wish to have the summonses that he has filed treated as applications for leave to appeal. 

Consideration:-

The point raised by the Registrar is a very straightforward one. The decision on which it is based, Penson v Titan National Pty Ltd [2015] NSWCA 404, is short and recent and a decision of the Court of Appeal constituted by Meagher, Gleeson and Simpson JJA. One point in that decision was whether Ms Penson, who appeared in person, had commenced within time, and that was determined favourably to her. Another point, on which Mr Singh relies, is that Ms Penson was seeking relief pursuant to s 69 of the Supreme Court Act from two decisions of the Court of Appeal constituted by, as it happens, Ward JA and me. Unlike Ms Penson, Mr Singh seeks to challenge decisions of judges sitting in the Common Law Division.

The paragraph of present relevance is para 8, and that provides as follows:

“Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson’s application in this respect is misconceived and should be dismissed.”

It will be seen that the Court of Appeal constituted by three judges there stated that orders of judges of the Supreme Court are not amenable to review under s 69. It may be that there are exceptions to the universal proposition stated by the Court of Appeal, for example if a judge of the Supreme Court is exercising a function conferred upon him or her personally which is an administrative function. But there is no suggestion that that is the case at present. Beech-Jones J made orders altering the constitution of the proceedings, removing some parties from the proceedings and joining NCAT. Rothman J heard and determined an application that he disqualified for bias and then heard and determined the summons.

I take the view that I have no choice in the application today. As the Registrar indicated a week ago, the decision of this Court constituted by three judges in Penson v Titan holds, in a way that binds me, that Mr Singh’s processes do not validly engage this Court’s jurisdiction. It is plain from what was said in McGinn v Cranbrook School [2015] NSWCA 378 at [5] that a single Judge of Appeal has power to exercise the powers of the Court of Appeal to dismiss a proceeding for want of jurisdiction. That is the course that I am bound to follow in light of the authorities which I have mentioned.

Conclusion:-

For those reasons, in each of proceeding 2021/00282536 and 2021/00271771, I dismiss the summons for judicial review filed by Mr Singh.

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The laws to be passed by Parliament enable differentiation of ‘classes of person’  to enable the Premier, of his own unilateral decision, to have a "vaccine economy" with the medical aparteid of Victorians and vaccine mandates in certain industries, events, setttings determined arbitrarrily by the Premier in unlimited 3 month blocks. 

These "classes of person" can be identified by their “characteristics, attributes or circumstances” under the new Pande legislation, which doesn't even require a pandemic to exist, but so long as the Premier decides in his own mind that there exists a pandemic like risk, even with no cases, these new permanent laws come into effect.  

"The Premier would wield unprecedented power to declare pandemics and enforce emergency laws under legislation set to replace Victoria's controversial state of emergency framework." - says Herald Sun State Politics Editor and Former chief court reporter Shannon Deery who leaked this information on Twitter yesterday.

The declaration of a pandemic management area as we have seen in the current emergency powers regime can be State Wide or target regions such as Melbourne with the wall of steel separating it from Regional Victoria or the recent targeted lockdowns of Sheparton and Ballarat regions.

It can be directed at "events" as opposed to regions so if you attend a protest rally and are identified as a "protestor" then that may be a "class of person" identifed by the Prtemier.

It can be by an activity you have undertaken or are undertaking, such as making anti-government commentary on social media or in public. 

Finally it can even target your characteristics, attributes or circumstances enabling the Premier of the day to determine whether you can be excluded from Society based on these broad undefined terms such as "characteristics, attributes or circumstances" could mean vaxxed or unvaxxed or it could mean employed or unemployed or self-employed only limited by the Premiers imagination.

A pandemic order can be on any attribute identified in the Equal Opportunity Act, so it can be based on sex, age, employment status, education status, provision of goods and services, sale of land, accomodations, club membership,  Pensioners, Superannuation status, Charity membership, religious affiliation, religious bodies. Religious schools. Religious beliefs or principles. Legal incapacity and age of majority. for the Protection of health, safety and property and the aged and concessions and special needs persons. 

Welcome to the "new normal" the Premier has been talking about. 

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Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179 (13 October 2021)

Intro:-

The Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs appeals from orders made by the primary judge in this Court’s original jurisdiction, quashing a decision of the Minister to refuse to grant the respondent a Protection (Class XA) visa on character grounds under s 501(1) of the Migration Act 1958 (Cth).

Facts:-

EBD20 is a male citizen of Iraq who arrived in Australia in 1997 at the age of 7 as the holder of a Refugee and Humanitarian (Class XB) visa. He has been convicted of a number of crimes, the first in 2004, for robbery in company. On 5 October 2012, EBD20 was sentenced in relation to four offences to which he had pleaded guilty, described next. On 8 May 2012, EBD20 pleaded guilty to two offences of wounding in company on 30 November 2010. He was, at the time, a member of the Notorious motorcycle gang. He was one of twelve men who arrived in five cars at a café in Mount Druitt where the treasurer of the Comanchero motorcycle gang was attacked, including by EBD20 with a baseball bat. On 15 May 2012, EBD20 pleaded guilty to two counts arising from events which occurred on 21 February 2011. EBD20 pleaded guilty to attempted specially aggravated break and enter with intent to intimidate. The circumstances of special aggravation, giving rise to count 2, were being armed with a dangerous weapon. One of the co-offenders had a Bentley twelve gauge pump action shotgun; another had .357 revolver and EBD20 was armed with a knife. The total sentence imposed was 5 years, with an overall non-parole period of 34 months.

EBD20’s Refugee and Humanitarian (Class XB) visa was cancelled on 6 July 2015 under s 501(3A) of the Act. That section provides for mandatory cancellation if the Minister is satisfied that a person does not pass the “character test”. EBD20’s application under s 501CA to revoke the cancellation decision was unsuccessful.

EBD20 applied for a Protection (Class XA) visa on 15 June 2017. That is the visa application the subject of this appeal. On 19 October 2017, a delegate of the Minister refused to grant the visa because of the application of s 36(1C)(b) of the Act. Section 36 includes:

36 Protection visas—criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

(1B) ...

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia’s security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

The Tribunal’s s 36(1C) decision

EBD20 successfully sought review in the Administrative Appeals Tribunal. The Tribunal made its decision and published its reasons on 3 October 2018 (hereafter “T”). The Tribunal concluded that there were not reasonable grounds for considering that EBD20 was “a danger to the Australian community”, stating at T[22] and T[48]:

... I have had the advantage of seeing and hearing the applicant in the witness box and of hearing the evidence of those who gave evidence on his behalf. For reasons which follow, I have decided that the applicant does not constitute a danger to the Australian community ...

Putting the various findings I have made together as to the position of the applicant since his last offending in 2011, and having attempted to estimate him in the witness box, and having heard what was said about him by his intended wife and family members, I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him. The reviewable decision will therefore be set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.

The Tribunal made the following decision under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act):

The reviewable decision is set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.

The Minister’s decision to refuse the grant of a Protection visa

In accordance with the Tribunal’s decision, the matter was remitted for reconsideration. Consistently with the Tribunal’s direction, the Minister – by his delegate or otherwise – did not decide that the criterion in s 36(1C)(b) was not satisfied. Rather, on 8 October 2020, the Minister personally refused to grant the Protection visa, because the Minister was not satisfied that the respondent passed the “character test” in s 501(6) of the Act and, on that basis, decided to exercise his discretion under s 501(1) to refuse to grant the visa

The Minister’s decision was accompanied by a statement of reasons (hereafter “D”), which included:

CHARACTER TEST

...

[7] I take into account the submissions by made by [EBD20]’s representative, who makes reference to the s 36(1C) finding by the Administrative Appeals Tribunal (AAT) on 3 October 2018. His representative submits that the general power to refuse [EBD20]’s visa on the basis that he does not pass the character test is not applicable where there is a specific duty under section 36(1C), which provides that [EBD20] is eligible for the visa provided he is not a danger to Australia’s security or a danger to the Australian community.

[8] However, I do not consider those submissions to throw any doubt on the accuracy or currency of information contained in [EBD20]’s criminal history certificates or the sentencing remarks of the District Court of New South Wales dated 5 October 2012. Furthermore, I note that [EBD20] has stated that he accepts the findings of the court and the sentence imposed for his criminal offending.

[9] As a result of the sentence of imprisonment, [EBD20] has a substantial criminal record. I find that he does not pass the character test by virtue of s 501(6)(a) of the Act with reference to s501(7)(c) of the Act and that he has not satisfied me that he passes the character test.

Issues:-

a) The Minister contended that the Tribunal’s s 36(1C) decision was not a mandatory relevant consideration in relation to his exercise of the discretion under s 501(1) and that the consideration given by the Minister to the Tribunal’s decision was not such (or so inadequate) as to demonstrate or give rise to jurisdictional error.

b) Was the Minister’s decision legally unreasonable?.

c) Did the Minister err by failing to give “proper, genuine or realistic consideration” to the Tribunal’s reasons?

Consideration:-

Granting or refusing a visa under s 65

The grant or refusal of a visa occurs under s 65 of the Act. The Minister is to grant a visa “if satisfied” that various criteria have been met and that the grant of the visa is not prevented by various provisions including s 501. Section 65 provides:

65 Decision to grant or refuse to grant visa

(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

One of the criteria which the Minister must be satisfied has been met is that provided by s 36(1C)(b): s 65(1)(a)(ii). One of the matters which the Minister must be satisfied does not prevent the grant of the visa is s 501(1): s 65(1)(a)(iii).

Section 36(1C) enacts into domestic law Australia’s interpretation of Article 33(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 33(1) prohibits the expulsion (or refoulement) of a refugee to places where his or her life or freedom would be threatened on account of a convention reason. Article 33(2) provides:

"The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

Whilst the issues raised by s 36(1C)(b) and 501(1) might overlap, the statutory questions posed by the provisions are different in many respects. Section 36(1C) does not provide a discretionary power. Rather, it provides, through the mechanism of a criterion of eligibility for a protection visa, a limited exception to Australia’s non-refoulement obligation. Reflecting the language of Art 33(2), s 36(1C)(b) contains a requirement that the view taken by the Minister must be taken “on reasonable grounds”.

Section 501(1) confers a discretionary power to refuse the grant of any visa “if the person does not satisfy the Minister that the person passes the character test”. Section 501(1) does not expressly require any consideration to be given to whether a person is a “danger”. Unlike s 36(1C), s 501(1) applies to all visas. The discretion in s 501(1) is intentionally broad. One of the matters the Minister typically, if not invariably, takes into account in considering the discretion is risk to the Australian community.

The criterion for eligibility for a visa in s 36(1C)(b) and the discretion not to grant the visa under s 501(1) serve different purposes, albeit facts relevant to one might also be relevant to the other. In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 at [284], O’Callaghan and Steward JJ observed:

... If an applicant fails to satisfy s 36(1C) they will not be eligible for a visa. In such a case, there will be no role for s 501 to play as there will simply be nothing to refuse. If an applicant satisfies s 36(1C), he or she may, like all other visa applicants in Australia, be subject to the Minister’s discretionary powers in s 501. In this way, and in our view, ss 36(1C) and 501(1) are cumulative requirements.

The delegate’s decision the subject of the Tribunal’s review was not one which concerned s 501(1). Before the matter was remitted by the Tribunal, there was no necessary occasion for the Minister to consider the operation of the discretion in s 501(1) given that the delegate took the view that there were reasonable grounds for considering EBD20 was “a danger to the Australian community”.

The Tribunal appears to have accepted the evidence of the clinical psychologist that EBD20 had a low to moderate risk of re-offending. The Tribunal must, however, have considered that the risk of recidivism was not sufficiently high as to warrant a conclusion that there were reasonable grounds for considering EBD20 “a danger to the Australian community”.

Unsurprisingly in light of the material before the Tribunal, including the expert evidence it apparently accepted, the Tribunal did not conclude that EBD20 posed no risk.

The Tribunal’s reasons must be read in the context that the level of risk was being assessed in order to answer the specific question posed by s 36(1C)(b), namely whether there were reasonable grounds for concluding that EBD20 was “a danger to the Australian community” and in the context of its findings, including its apparent acceptance of evidence consistent with an ongoing low level risk. At T[48], the learned Deputy President stated:

... I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him.

This statement does not involve a conclusion that EBD20 posed no risk. It is a conclusion that the community was likely to be safe. It was a very favourable conclusion in favour of EBD20, but it was not one which went so far as to say he posed no risk. The Tribunal’s view was that the level of risk posed by EBD20 was not sufficient for it to be said that there were reasonable grounds for considering EBD20 to be “a danger to the Australian community”.

It might be observed that one does not know what decision the Tribunal would have reached if the Tribunal had been asking itself whether there was “a risk to the Australian community” at a level sufficient to warrant exercise of the broad discretion under s 501(1) to refuse the visa. Indeed, one does not know what test the Tribunal would have adopted if it had embarked on that exercise, or what level of risk it would have regarded as tolerable, for the simple reason that it was not reviewing any decision involving such a question.

It might be further observed that, if the review was one concerning the exercise of a discretion under s 501(1), the task would have involved the Tribunal complying with lawful directions made under s 499 of the Act which would necessarily have affected the Tribunal’s analysis in a way not shared with the task in which it was in fact engaged.

Mandatory relevant considerations

As to the first matter, mandatory relevant considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 can be express or implied. The Tribunal’s decision and reasons were not, according to the terms of s 501(1), express mandatory considerations. Given that s 36(1C) and s 501 are different statutory powers directed to different purposes, it should not be implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1).

In any event, there is no question that the Minister did consider the Tribunal’s decision and reasons. As will be explained below, the consideration given was also adequate.

Legal unreasonableness and inconsistency

As to the second matter, the grant of the discretionary power in s 501(1) is presumed to have been made on the implied condition that it be exercised reasonably – see generally: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

EBD20 submitted that the Tribunal’s decision and reasons were inconsistent with the Minister’s decision and that the Minister’s reasons disclosed no intelligible justification for rejecting the Tribunal’s reasons. This submission largely hinges upon a contention that the Tribunal concluded that EBD20 posed no risk to the Australian community. For the reasons given earlier, this contention is not correct.

Properly analysed, there is no real inconsistency between the Tribunal’s decision about s 36(1C)(b) and the Minister’s decision in relation to s 501(1). The Minister was considering the exercise of the discretion in s 501(1) in respect of a person who had been found not to be “a danger to the Australian community” within the meaning of s 36(1C)(b).

As a matter of principle, it is not irrational or inconsistent to decide under s 36(1C)(b) that there are not reasonable grounds for concluding that a person is “a danger to the Australian community”, but nevertheless to reach the conclusion that the person presents a sufficient level of risk to warrant exercising the discretion under s 501(1) not to grant a visa.

The Minister approached the matter, first, on the basis that “Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia”: D[22]. Secondly, he considered whether EBD20 posed a risk through reoffending: D[23] and following. The ultimate conclusions in respect of these two matters were:

[86] [EBD20] has committed multiple serious crimes, including offences of a violent nature and as a member of a criminal gang. [EBD20] and non-citizens who commit such offending should not generally expect to be permitted to remain in Australia.

[87] I find that the Australian community could be exposed to significant harm should [EBD20] reoffend in a similar fashion. I could not rule out the possibility of further offending by [EBD20]. The Australian community should not tolerate any further risk of harm.

The “test” the Minister applied with respect to level of risk was, in substance, that no risk of harm was tolerable: at D[87]. This was not the test which the Tribunal applied to the question before it. Whatever threshold the Tribunal applied (see T[28]), the Minister’s risk tolerance threshold for s 501(1) purposes was lower.

The Minister and the Tribunal were each looking at the level of risk to answer different questions. The different inquiries contained a common element, namely an assessment of the level of risk which EBD20 posed. The Tribunal concluded that the level of risk was not sufficient for s 36(1C)(b); but it did not conclude there was no risk. The Minister concluded that the level of risk was sufficient to warrant the exercise of the discretion in s 501(1). A conclusion that the level of risk was not such that the person was a “danger” for the purposes of s 36(1C)(b) does not mean that the level of risk was insufficient to warrant an exercise of the discretion in s 501(1). The Minister might lawfully take the view, as he evidently did, that a low risk is sufficient for exercise of the discretion under s 501(1) and that it is not necessary for s 501(1) purposes that the risk be at a level such that the criterion in s 36(1C)(b) was not satisfied.

The Minister recorded in his reasons that he had considered the Tribunal’s conclusion that EBD20 was not “a danger to the Australian community” and explained why he considered that EBD20 posed a risk at a level sufficient to exercise the discretion in s 501(1). This was appropriate. The consideration which the Tribunal had given to the question of whether EBD20 was “a danger to the Australian community” was relevant to the Minister’s task under s 501(1), in particular because, in answering the question before the Tribunal, the Tribunal had looked at matters relevant to the level of risk posed by EBD20, including the possibility he might reoffend. To the extent there is tension between the ultimate conclusions of the Tribunal and the Minister, that is explained by the fact that the level of risk was being assessed in relation to different questions and that the Minister’s test as to the level of risk for the purposes of s 501(1) was not the same as the Tribunal’s test as to the level of risk for the purposes of s 36(1C)(b).

The fact that the Tribunal considered the level of risk insufficient for the question it had to answer did not prevent the Minister assessing whether the level of risk was, notwithstanding, sufficient for the different question he had to answer. The Minister was not bound to determine that the level of risk was insufficient for s 501(1) purposes merely because the Tribunal had concluded that the level of risk was insufficient to reach a conclusion of “danger” under s 36(1C)(b).

There was a direction from the Tribunal to the effect that the criterion in s 36(1C)(b) was satisfied. The Minister acted in accordance with the direction. The direction was not one which had the effect that the Minister could no longer consider the level of risk EBD20 posed when considering the other conditions for the grant of the visa including whether it could not be granted because of an exercise of discretion under s 501(1): s 65(1)(a)(iii).

The present case is different to Makasa. In Makasa, a delegate suspected Mr Makasa failed the character test by reason of sentences imposed in 2009 and cancelled Mr Makasa’s visa under s 501(2). In 2013, the Tribunal made a decision under s 43(1)(c)(i), setting aside the delegate’s decision and substituting a decision that the visa not be cancelled. In 2017, being satisfied that Mr Makasa failed the character test solely by reason of the 2009 convictions, the Minister again exercised the discretion conferred by s 501(2), taking later convictions into account in the exercise of the discretion. The High Court held that, once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa: at [23], [27], [56].

The present case concerns a single refusal to grant a visa, not successive exercises of the one power to cancel a visa. The visa application has only been refused once on the basis of s 501(1) and had never been refused on that basis at the time of the Tribunal’s decision.

The Minister’s decision is not relevantly inconsistent with the Tribunal’s decision. It was not legally unreasonable for that or any other demonstrated reason.

Engagement with the Tribunal’s reasons

As to the third matter, EBD20 contended that the Minister did not properly exercise the jurisdiction entrusted to him by failing to engage sufficiently with the Tribunal’s decision.

The Minister’s reasons show a consideration of the Tribunal’s reasons of a kind consistent with the lawful exercise of the discretion in s 501(1), including through the explanation given as to why the risk posed by EBD20 was sufficient to warrant the exercise of the s 501(1) discretion. EBD20 has not established jurisdictional error on this basis.

Conclusion:-

The Minister did not fail to take into account a mandatory consideration or fail sufficiently to engage with the Tribunal’s reasons. The Minister’s decision was not legally unreasonable. The Tribunal’s direction was given effect. The Minister’s view that EBD20 posed a risk to the Australian community was not relevantly inconsistent with the Tribunal’s conclusion that the criterion in s 36(1C)(b) was satisfied. The effect of what has occurred, as a matter of substance, is that the Minister has concluded that EBD20 was not a danger to the Australian community but nevertheless poses a risk at a level such that the discretion in s 501(1) should be exercised not to grant the visa.

The Minister’s decision has not been shown to be the subject of jurisdictional error in any of the ways raised in the appeal. The primary judge erred in concluding that the consideration given by the Minister to the Tribunal’s decision and reasons was such as to demonstrate jurisdictional error.

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Charisteas v Charisteas [2021] HCA 29 (6 October 2021)

Intro:-

This is an appeal from a judgment of the Full Court of the Family Court of Australia dismissing an appeal from the Family Court of Western Australia.

Facts:-

The appellant ("the husband") and the first respondent ("the wife") married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under s 79 of the Family Law Act 1975 (Cth) ("the Act") for orders settling the property of the parties to the marriage.

In 2011, Crisford J of the Family Court of Western Australia made property settlement orders under s 79 of the Act ("the 2011 Property Orders").Paragraphs 2 to 4 of the 2011 Property Orders provided for the early vesting of an identified trust ("the Trust"); upon vesting, for the distribution of the trust fund and income in accordance with the trust deed between the husband, the wife and their three adult children; and, before such distribution, for a payment of $338,000 to the husband's mother, who was a general beneficiary of the Trust ("the Early Vesting Orders").

In April 2013, the Full Court of the Family Court of Australia set aside the Early Vesting Orders on the basis that the husband's mother had been denied procedural fairness. The Full Court did not make any consequential orders whether remitting that issue for rehearing or otherwise. The parties could not agree on what was then to happen. In February 2015, Walters J of the Family Court of Western Australia ("the trial judge") published a lengthy interlocutory judgment in which his Honour held that the 2011 Property Orders were not final orders and that the Court retained power to make property settlement orders under s 79 of the Act.

On 12 February 2018, the trial judge delivered judgment and, among other things, purported to make orders under s 79 of the Act ("the 2018 Property Orders"). Those orders did not set aside or vary the 2011 Property Orders but were inconsistent with them. Three days later, the trial judge retired. On 12 March 2018, the husband appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders.

In May 2018, in response to the husband's solicitors, the wife's barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged "numerous" text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged "occasional" text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the "communications" with the trial judge did not concern "the substance of the ... case". The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.

On appeal to the Full Court there were two relevant issues. The first was whether the 2018 Property Orders should be set aside on the ground of a reasonable apprehension of bias arising from the trial judge's private communications with the wife's barrister. There was no suggestion of actual bias. The second was whether the power under s 79 of the Act was capable of being exercised by the trial judge when Crisford J had already made the 2011 Property Orders. By majority (Strickland and Ryan JJ, Alstergren CJ dissenting), the Full Court dismissed the appeal. Strickland and Ryan JJ rejected the allegations of apprehended bias and dismissed the appeal against the 2018 Property Orders. Alstergren CJ would have allowed the appeal on the ground of apprehended bias and remitted the matter for rehearing. His Honour did not address s 79 of the Act.

The husband's appeal to this Court raised the same issues.

Issues:-

a) whether the 2018 Property Orders should be set aside on the ground of a reasonable apprehension of bias arising from the trial judge's private communications with the wife's barrister.

b) whether the power under s 79 of the Act was capable of being exercised by the trial judge when Crisford J had already made the 2011 Property Orders?

Consideration:-

Apprehended bias

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice".

Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone in 1972:

"The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."

In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife's barrister "otherwise than in the presence of or with the previous knowledge and consent of" the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife's barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.

A fair‑minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife's barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.

The apprehension of bias principle is so important to perceptions of independence and impartiality "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.

The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications, particularly when he was dealing with the application to recuse himself on other grounds. It may give the hypothetical observer reason to doubt the correctness of the claim by the wife's barrister that their communications did not concern "the substance" of the case, if the ambiguity inherent in that statement is not itself of sufficient concern.

The majority also reasoned, the hypothetical observer would be "able to tolerate" some degree of private communication between a judge and the legal representative of only one party, even if undisclosed. The majority considered that the hypothetical observer would accept in this case that the judge and the wife's barrister would adhere to professional restraint in what was discussed and would accept that a professional judge who has taken an oath of office would not discuss the case at hand.

Once again, this reasoning is erroneous. The alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system[. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self‑appreciation of this kind.

It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. The means by which their contact may be resumed is by a judge making orders and publishing reasons, thereby bringing the litigation to an end. It is obviously in everyone's interests, the litigants in particular, that this is done in a timely way.

Section 79

Section 79 of the Act confers power on a court exercising jurisdiction in proceedings by virtue of the Act to make an order for the settlement of property. When an order is made under s 79, subject to the limited jurisdiction to vary it or set it aside given by s 79A of the Act, "the power of the ... Court to make an order under s 79 is treated as having been exercised and as exhausted"[21].

Crisford J set out her Honour's findings of the assets and liabilities of the parties to the marriage and the 2011 Property Orders dealt with all of that property. The s 79 power had been exercised and was exhausted. A Full Court of the Family Court set aside the Early Vesting Orders, which, as noted, were paras 2 to 4 of the 2011 Property Orders. It is important to understand what that Full Court did and did not do. When it set aside the Early Vesting Orders, the Full Court did not deal with the re-exercise of the s 79 power in relation to the Early Vesting Orders or remit that aspect for further hearing. But nor did the Full Court alter any other aspect of the 2011 Property Orders.

Given that there is to be a retrial, that remains the position. The 2011 Property Orders, without the Early Vesting Orders, have not been set aside. Contrary to the view reached by the Full Court that set aside the Early Vesting Orders, the power under s 79 of the Act to deal with the property the subject of the Early Vesting Orders is not spent. The Family Court of Western Australia retains the power under s 79 to make orders that, in all the circumstances, it is satisfied are just and equitable, in relation to the property the subject of the Early Vesting Orders. If orders were to be made in the same form as the Early Vesting Orders, the 2011 Property Orders would stand unaffected. By contrast, if some different order were to be made with respect to the early vesting and distribution of the Trust, there may be a question about whether a party can show that powers can and should be exercised under s 79A.

Conclusion:-

The appeal be allowed with the first respondent to pay the costs of the appeal.

The orders of the Full Court of the Family Court of Australia made on 10 July 2020 be set aside and, in their place, there be orders that:

(a) the husband's appeal be allowed with the wife to pay the costs of the appeal, including any costs of the wife's cross-appeal;

(b) the orders made by Walters J on 10 February 2015 and 12 February 2018 be set aside; and

(c) the application for orders pursuant to s 79 of the Family Law Act 1975 (Cth) further or in addition to paragraphs 1, 5-13 and 15 of the orders made by Crisford J on 9 December 2011 be remitted to the Family Court of Western Australia for rehearing.

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Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 (23 September 2021)

Intro:

This is an appeal from decision of primary judge dismissing application for judicial review of Minister who decided not to revoke mandatory cancellation of appellant's visa pursuant to Section 501CA (4) of the Migration Act, 1958 (Cth).

Facts:-

Mr Bettencourt came to Australia from Portugal as an 8‑year old. He has lived here ever since. He is one of 10 siblings and has an extended family in Australia. He is now 41 years of age. He has two young children of his own. They are of primary school age.

Despite living only in Australia since he was a child, Mr Bettencourt has remained a citizen of Portugal. He has resided in this country as the holder of a permanent visa.

In 2019, Mr Bettencourt was convicted of possessing child exploitation material and sentenced to 14 months imprisonment. By reason of the term of his sentence being more than 12 months he failed the character test for the purposes of s 501 of the Migration Act 1958 (Cth). As required by s 501(3A) of the Act, the Minister cancelled his visa. The Minister then invited Mr Bettencourt to make representations about revocation of the original decision. Section 501CA(4) of the Act provides that the Minister may revoke the original decision to cancel a visa under s 501(3A) if representations are made in accordance with such an invitation and the Minister is satisfied that the person passes the character test or is satisfied that 'there is another reason why the original decision should be revoked'.

Lawyers acting on behalf of Mr Bettencourt made detailed representations to the Minister setting out a number of reasons why the original decision should be revoked. The representations took the form of submissions by way of letter (Submissions) and many attachments, including statements of support from a number of family members.

The Submissions were arranged by reference to the terms of Direction No 79 (Direction), being the terms of a direction made by the Minister pursuant to s 499 of the Act. Within the preamble to the Direction, its purpose is described as being to guide decision-makers in performing functions or exercising powers under certain related provisions of the Act. They include s 501CA. The Direction does not bind the Minister in the personal performance of the statutory obligation to form the state of satisfaction required by s 501CA(4) when a person makes representations in accordance with an invitation. However, it is an instrument of policy that is known to be used in such cases and indeed its structure was followed by the Minister in the reasons that he provided in Mr Bettencourt's case.

One of the primary considerations specified in the Direction is the best interests of minor children in Australia. The Direction says that decision-makers must take into account the primary and other relevant considerations relevant to the individual case. It also says that in applying the considerations 'information and evidence from independent and authoritative sources should be given appropriate weight' and that primary considerations 'should generally be given greater weight than the other considerations'.

Under the heading 'Primary Consideration: Best Interests of Minor Children in Australia Affected by the Decision', the Submissions described the circumstances of Mr Bettencourt's two children, including that they share an extremely close relationship with their father. It then set out a number of quotations from the statements of support and from a statement provided by Mr Bettencourt concerning the relationship and the effect of separation that would be the necessary consequence if the visa cancellation was not revoked and Mr Bettencourt was removed from Australia.

The Submissions then said: 'There is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child'. Quotations were provided from three public sources of expert information. They included:

"With prolonged parental absence, children may become passively compliant with care staff, giving the appearance of having 'settled in' to their new environment. Disturbingly, this can signify that the child has detached from the parents and is now living in a perceived state of 'fear without resolution'. Children reunited while they are in the early separation protest phase usually fare well. Children in despair may respond to the reappearance of their parent with hostility or ambivalence, taking many weeks to rebuild their bond. Children who have detached from their parents may reject their approaches or treat them as strangers. Additionally, when children interpret themselves as 'abandoned' by parents, they may develop a profound sense that they have done something wrong to cause their caregiver to leave, igniting shame and complex emotions that can damage the lifelong relationships with themselves and others.

...

Studies have shown that if a child suddenly loses a parent, either through death, abandonment, or a prolonged separation, the child experiences intense fear, panic, grief (a combination of sadness and loss), depression, helplessness and hopelessness. The child has lost his lifeline, and often his sense of self. The world, and life, become disorganized and terrifying ... Children actually blame themselves for a parent's disappearance. The child naturally concludes: 'I must have done something wrong, otherwise my parent wouldn't have left. I must be bad.' The child feels tremendous rage at the parent for leaving, but since it cannot be expressed to the parent, it becomes a constant ache inside or depression (anger turned against the self) or the child will act out aggressively. A child who suddenly loses a parent finds it hard to trust others in relationships; finds love dangerous; (the person could leave), and feels constant longing for the parent."

Manifestly, the Submissions advanced the expert materials to support the claim that prolonged and long term harm to the two children would result from their permanent separation from their father and that was 'another reason' why the cancellation of Mr Bettencourt's visa should be revoked. Based on that (and other) claims it was submitted that the best interests of the children 'weigh heavily' in favour of revocation.

The decision by the Minister

The Minister was not satisfied that there was another reason why the cancellation of Mr Bettencourt's visa should be revoked. The Minister concluded that as he was not so satisfied, the statutory power to revoke the visa cancellation was not enlivened. Reasons were provided by the Minister (there being a statutory requirement to provide reasons for a decision to not revoke a decision to cancel a visa: see s 501G of the Act).

Issue:-

a) Did the primary judge err in finding that the Minister had considered in a proper, genuine and realistic manner, the adverse impact of long term separation of a child from a parent despite lack of reference to expert information in Minister's reasons?

Analysis:-

As the decision was made by the Minister personally, the statutory administrative review on the merits that would have been available if the decision was made by a delegate of the Minister did not apply. Mr Bettencourt sought review of the Minister's decision in this Court on the basis of alleged jurisdictional error. The jurisdiction to be exercised was that circumscribed by s 476A of the Migration Act and therefore, relevantly for present purposes, was confined to review for jurisdictional error. Mr Bettencourt's application alleged two errors, one of which was to the effect that the Minister failed to exercise his statutory jurisdiction by failing to give proper, genuine and realistic consideration to the representations made as to the likelihood of the children suffering long term harm due to a lack of a meaningful relationship with their father if he were removed from Australia.

It is important to note that the appeal concerned the quality and character of the consideration given by the Minister to that 'other reason' advanced. It was not claimed that there had been no consideration given to the reason at all or that it had been completely ignored or overlooked by the Minister. Rather, it was submitted that the material relied upon demonstrated long term consequences of such magnitude that a failure to refer to those consequences in any meaningful way in the reasons supported the finding that the seriousness of the harm to the children had not been considered in the way that was needed in order for the Minister's state of satisfaction to be formed by undertaking a meaningful engagement with the reason advanced. In effect, the state of satisfaction was disconnected from consideration of the true content of the reason advanced as to why the visa cancellation should be revoked, namely the serious, long term, lifetime of harm to the children that would result.

Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:

(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

The Court will recognise that there is no obligation upon the Minister to refer to every piece of evidence or every contention: ETA067 v The Republic of Nauru [2018] HCA 46 at [13].

In addition to the above matters, an understanding of what is required by s 501CA as to the nature and quality of consideration to be undertaken by the Minister in any particular case is informed by the subject matter of the power and takes its form and shape from the terms, scope and policy of the statute. The principle of legality also means that its nature and extent are not taken to interfere with fundamental values anchored in the common law unless the statute does so explicitly. Therefore, as stated by the Chief Justice (Markovic and Steward JJ agreeing) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], the following general description pertains to the character and quality of consideration that must be undertaken by the Minister in forming the required state of satisfaction for the purposes of s 501CA(4):

"The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament."

The Court is also conscious in cases like the present that the repository of the power is the Minister and it is the Minister's state of satisfaction that determines whether there is power to revoke the visa cancellation. It is not for the Court to usurp that authority entrusted by Parliament in the Minister and clothe a view as to the merits of the reasons advanced by way of representation to the Minister with language said to manifest jurisdictional error. In order for there to be jurisdictional error of the kind alleged in the present case there must be a finding that the duty to perform the statutory task was not carried out, not that there is disagreement, even strong disagreement with the reasoning and conclusion reached. Put shortly, the Court must not do anything that would substitute its state of satisfaction for the Minister's state of satisfaction in the present case.

Reasons for allowing the appeal

It may be noted that the relevant academic material referred to in the Submissions relied on by Mr Bettencourt to support the reason for revocation is not referred to and is therefore not questioned or doubted in the Minister's reasons.

The primary judge reasoned that the Minister's failure to refer to this material indicated implicit acceptance that long term separation was likely to be harmful and 'strongly favoured revoking the visa cancellation': at [29]. We are respectfully unable to agree with those findings by the primary judge. The following aspects of the Minister's reasons lead us to conclude that whilst the Minister recognised that there would be harm to the children and that, as a result, cancellation of the visa was in the best interests of the children, it is not possible to take the further step of concluding that the Minister implicitly accepted that long term separation was likely to be harmful and formed the view that the reason strongly favoured revocation. Rather, the conclusion to be reached from a consideration of the reasons is that the Minister failed to form the required state of satisfaction by reference to the information before him as to the seriousness of the harm to the children that was likely if the visa cancellation was not revoked, information which, as we have said, in this appeal the Minister accepted was compelling. The Minister thereby failed to form the required state of satisfaction.

First, there is no reference to the terminology used in the material in the Submissions which described the seriousness of the harm to the children that was likely in the long term.

Secondly, there is no finding by the Minister in the reasons concerning the quality or character of likely harm to the children. Rather, the only reference is to taking account of a submission by the maternal grandmother of the children that they will be 'mentally and physically affected should their father be removed from Australia'. Significantly absent is any description of the nature, extent or duration of such effect. Also absent is any conclusion as to the nature and extent of harm. The reason advanced in the Submissions was not simply that there would be a mental and physical effect. The reason was that the magnitude of the harm to the children would be substantial and ongoing. Further, and importantly, it was founded not on the views of a family member (which the form of reasons would suggest) but on expert views not adverted to in the reasons.

Thirdly, the language used in the reasons focusses upon distress and upset to the children at the time of separation rather than ongoing harm.

Fourthly, the key conclusion by the Minister that the best interests of the children would be served by the revocation of the original decision is expressed blandly without any qualitative evaluation of a kind that would indicate that the Minister accepted that there would be serious harm to the children if the decision was not revoked. In particular, there is no language in the conclusion (or elsewhere in the reasons) to support the finding by the primary judge that the Minister concluded that the interests of the children 'strongly favoured revoking the visa cancellation decision'.

Fifthly, in order for the Minister to form the required state of satisfaction it was necessary for the Minister not only to form a view as to whether the matters raised meant that the best interests of the children would be served by the revocation of the cancellation decision but to evaluate the significance of those matters. Only then would the representations as to the seriousness of the matters relied upon be considered in forming the required state of satisfaction. There is no indication in the language of the reasons that such an evaluation was undertaken by the Minister.

Sixthly, if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister.

For completeness we note that the Minister did not gainsay the proposition that if error of the type contended for by Mr Bettencourt is established, then such error was sufficiently material to warrant a conclusion of jurisdictional error.

Conclusion

For the reasons we have given, the appeal should be allowed with costs. There should also be an order in favour of the appellant in respect of the costs of the proceedings before the primary judge. It is appropriate in the interests of efficiency for provision to be made for lump sum assessment of costs by a registrar if the quantum of costs is not agreed.

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NDBR v Minister for Home Affairs [2021] FCAFC 170 (20 September 2021)

Intro:-

This is an appeal from a judgment of this Court refusing an application for review of a decision of the second respondent (Tribunal): see NDBR v Minister for Home Affairs [2019] FCA 1631. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth).

Facts:-

The appellant arrived in Australia by boat on 19 June 2012. On 12 November 2012 he applied for a Protection (Class XA) visa.

On 9 September 2013 the appellant was charged with one charge of unlawfully and indecently dealing with a child under the age of 16 contrary to s 210(1)(a) of the Criminal Code Act 1899 (Qld).

On 27 September 2013 a delegate of the Minister refused to grant the appellant a protection visa.

On 19 September 2014 the then Refugee Review Tribunal remitted the matter for reconsideration with the direction that the appellant satisfied s 36(2)(a) of the Act.

On 6 May 2015 the appellant was convicted in the District Court of Queensland for indecently dealing with a child under the age of 16 years. On 25 May 2015 Judge Bradley sentenced the appellant for that offence. In doing so her Honour described the offending conduct and then remarked that:

It was therefore a short incident, but it was persistent. And there’s no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.

The appellant appealed against his conviction. On 1 October 2015 the Queensland Court of Appeal set aside the appellant’s conviction and ordered a re-trial.

On 25 May 2016 the appellant was again convicted of one count of indecently dealing with a child under the age of 16 in the District Court. He was re-sentenced by Judge Horneman-Wren SC who, in doing so, remarked that:

"On the last occasion that her Honour sentenced you, she described the offence of which you have been convicted as having been a short incident but a persistent one. Her Honour observed that there had been no evidence that there was no (sic) real predatory behaviour on your part. Her Honour accepted that it was opportunistic and although it occurred in a public place it was in a relatively secluded part of the library. That description that her Honour made, with respect, seems appropriate. And I am not invited by the prosecution to view it any other way...."

On 7 December 2018 a delegate of the Minister refused the appellant’s application for a protection visa under s 501(1) of the Act. A submission prepared within the Department for the delegate’s consideration included under the heading “Offending History/Character Concerns” that:

"The Judge noted that despite it being a short incident, [the appellant’s] behaviour was ‘persistent’ and ‘opportunistic’ as it occurred within a secluded space within the library. The Judge also noted however that there was no evidence of any real predatory behaviour by [the appellant] (Attachment C)."

Tribunal's decision

The Tribunal identified the issues for consideration to be whether the appellant passed the character test as defined in s 501(6) of the Act and, if he did not, whether the grant of the protection visa should be refused. However, it noted that, given the appellant’s concession that he did not pass the character test by reasons of s 501(6)(e) of the Act, the sole issue for its determination was whether it should exercise the discretion to refuse to grant the visa under s 501(1) of the Act.

The Tribunal addressed the primary considerations as required by Direction 79, first considering the protection of the Australian community from criminal or other serious conduct by reference to cl 11.1 of Direction 79. Two aspects of the Tribunal’s treatment of that primary consideration are in issue on the appeal: first, the Tribunal’s characterisation of the appellant’s behaviour as “predatory” (see appeal ground 1); and secondly, the Tribunal’s consideration of the appellant’s rehabilitation (see appeal ground 2).

At [55] of its decision record the Tribunal said:

Taking into account all of the above, the offence for which the [appellant] was convicted must be viewed as serious. All crimes of a sexual nature against children are serious. The Tribunal notes Judge Bradley’s comment that the offence was “persistent” but did not involve predatory behaviour (R2, G12/99). The Tribunal also notes the more fulsome statement of the facts in the Court of Appeal’s judgment (see [49] above) which indicates that the Applicant made two approaches to the victim and attempted to have the victim accompany him back to his car. That behaviour is of concern to the Tribunal and, with respect, the Tribunal cannot agree with Judge Bradley’s characterisation of the Applicant’s behaviour as not predatory. In the Tribunal’s view the Applicant’s behaviour as described in the Court of Appeal’s judgment can be properly described as predatory.

(Emphasis added.)

The Primary Judge's Decision

The appellant contended that, if there was power to go behind the conviction and sentence imposed by the District Court, the Tribunal failed to accord him procedural fairness because it failed to alert him to the fact that it was minded to depart from the assessment of the sentencing judges, which assessment had been adopted by the Minister in his personal decision (overturned on appeal to this Court) and by the delegate in his decision that was under review by the Tribunal.

In relation to that ground the Court was not satisfied that there was any denial of procedural fairness by reason of the Tribunal adopting a different characterisation of the offending than that adopted by the sentencing judges. The primary judge found that the appellant was on notice of the predatory characterisation issue for three reasons: first, because of the terms of Direction 79; secondly, because of the references to the additional details of the appellant’s offending included in the decision of the Court of Appeal which arguably supported a more serious characterisation of the appellant’s offending; and thirdly, because the appellant had attempted to minimise the seriousness of his conduct when giving evidence before the Tribunal: see NDBR at [60]-[67].

Issue:-

a) Did the Court below err by failing to conclude that the Tribunal failed to accord the Appellant procedural fairness, in that it failed to alert him to that fact that it was minded to depart from the assessment of the sentencing judge(s), which assessment was adopted by the Minister in his personal decision (overturned on appeal to the Federal Court), and by the delegate in the subsequent decision which was under review in the Tribunal.

b) Was the failure to accord procedural fairness material?

Analysis:-

There was no dispute between the parties about the applicable principles.

In Alphaone at 590-591 a Full Court of this Court (Northrop, Miles and French JJ) said:

"It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."

This statement of principle was approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32].

In Alphaone at 591-592 the Full Court said:

"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ..."

A failure to put an applicant on notice of an adverse issue not obviously open or apparent from the material and which is relevant to the ultimate conclusion may be a breach of the requirements of procedural fairness: see generally SZBEL at [35]-[43]. In particular, in SZBEL the High Court said at [34]-[35], albeit in relation to the obligations of the then Refugee Review Tribunal under s 425 of the Act, that:

"... The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant."

In our view and, contrary to the conclusion reached by the learned primary judge, the appellant was denied procedural fairness by the Tribunal in that it omitted to inform him that it proposed to depart from the characterisation of the offending as not predatory and as found by Judge ‍Bradley and Judge Horneman-Wren SC at the time of sentencing the appellant. Our reasons for reaching this conclusion follow.

First, all of the material before the Tribunal until the time of the hearing characterised the appellant’s offending conduct in a particular way. That is as first characterised by Judge Bradley in her Honour’s sentencing remarks as a “short incident” but “persistent”, with “no evidence that there was any real predatory behaviour” and that it was “opportunistic”. That description or characterisation was adopted by Judge Horneman-Wren SC when his Honour came to re-sentence the appellant, the Minister when he made the first refusal decision and the delegate who made the decision refusing the appellant a protection visa. Further, the written submissions relied on by both the appellant and the Minister adopted the same characterisation. Up to the point of the hearing, the appellant could not be expected to understand that the description of his offending was in issue and open to a different characterisation.

Secondly, at no time during the hearing did the Tribunal put the appellant on notice that the characterisation of his offending as persistent and opportunistic but not predatory was in issue.

Thirdly, it is necessary to have regard to the significance of a finding of predatory behaviour in the context of a case such as this by reference to the relevant authorities.

In R v Scott [2009] VSCA 20; (2009) 22 VR 41, the applicant had been convicted of one count of wilfully committing an indecent act with or in the presence of a child under the age of 16 and was sentenced to 15 months’ imprisonment with a non-parole period of six months, In sentencing the applicant the judge described his conduct as predatory. On appeal the applicant submitted, among other things, that the Judge’s description of the applicant’s behaviour as “predatory” amounted to a specific sentencing error, because it was an offence which occurred on the spur of the moment and had not been preceded by a prolonged period of grooming or planning: see Scott at [92].

To similar effect in relation to predatory conduct at [113]-[115] Robson AJA relevantly said:

"In R v Fuller-Cust, this court acknowledged that the presence of a predatory feature in a sexual assault case would be an aggravating factor. Batt JA, with whom Eames JA and O’Bryan AJA agreed, said:

The applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who was likely, if free, to prey on members of the public at large. The absence of such an element in the offending is not a mitigating factor, as such. Rather, the presence of a predatory feature would be an aggravating factor. But the absence of this factor is relevant to the question of rehabilitation.

In that case, this court appears to have treated predatory as an appropriate description where the offender has planned or is predisposed to sexually assault or is a threat to others to do so. In R v KU; Ex parte Attorney-General (Qld), the Queensland Court of Appeal considered whether a defendant’s rape had been predatory:

No evidence emerged during this assessment of any specific planning by [the defendant] for this offence to occur, suggesting the behaviour was situational and opportunistic rather than predatory in nature.

Again, the element of planning is identified by the court as an indicator of predatory behaviour. Nevertheless, opportunistic behaviour may be predatory if the person is predisposed to take advantage of such situations. The Oxford Dictionary definition of predatory includes “of an animal: that preys upon other animals”. In my opinion, the hallmark of a sexual predator would be one who preys on his sexual victims."

The Minister submitted that it could not be assumed that the Tribunal used the word “predatory” in its technical criminal law sense but rather having regard to its ordinary meaning. However, there is nothing in the Tribunal’s reasons that permits such an inference to be drawn. The Tribunal at [55] expressly disagreed with Judge Bradley’s characterisation of the appellant’s conduct which clearly, and which the Minister accepts, reflected the approach set out in the authorities. That the Tribunal viewed the conduct as “serious” does not assist in drawing the inference urged by the Minister, particularly having regard to the prescription in Direction 79.

Fourthly and relatedly, the Tribunal acknowledged during the hearing that it was bound by the “sentencing comments of the Judge” (see [78(2)] above) from which the appellant was entitled to infer that the Tribunal would consider itself bound by the remarks of Judge Bradley, which were adopted by Judge Horneman-Wren SC, and who had characterised his conduct as “opportunistic” and not predatory. As the primary judge observed the Tribunal acknowledged in its reasons (at [67]) and in the course of the hearing that it could not go behind the conviction. The primary judge found that the Tribunal did not go behind any of the essential facts on which the conviction was based. That may be so. But where we differ is that while the Tribunal accepted the conviction, it then went on to re-characterise the conduct and, in doing so, departed from the characterisation adopted by the sentencing judges in a significant way. While the Tribunal was entitled to do so it was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant.

Fifthly, in forming the view that the appellant’s conduct was predatory the Tribunal relied on the recitation of the facts in the judgment of Gotterson JA. Those facts were provided by the parties for the purpose of the appeal which was an appeal on conviction only raising a narrow issue concerning the failure to give a direction to the jury upon the replaying of the complainant’s evidence to the jury. The Court of Appeal recited the facts for the purpose of the appeal without making any findings or comment on them. That the Court of Appeal’s description of the conduct was more fulsome than that included in the sentencing remarks of Judge Bradley does not, without more, put in issue the characterisation of the conduct.

The next question to resolve is whether the failure by the Tribunal to afford the appellant procedural fairness by failing to alert him to the fact that it was minded to depart from the characterisation of his conduct by the sentencing judges (which was adopted by the Minister and the delegate) was material to the outcome.

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 a majority of the High Court (Bell, Gageler and Keane JJ) held at [3] and [45] that a breach of the obligation of procedural fairness can give rise to jurisdictional error if, and only if, the breach is material in the sense that compliance could realistically have resulted in a different decision. The question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof and “[l]ike any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application”: see SZMTA at [45].

In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) confirmed that the approach in SZMTA was sound in principle and should not be revisited, reiterating that materiality involves a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred which is a question of fact in respect of which the applicant bears the onus of proof: see MZAPC at [2]-[3].

We accept the appellant’s submission that the breach of procedural fairness in this case was material. Had the Tribunal alerted the appellant to the fact that it was minded to form a different view about the characterisation of his conduct, he could have made submissions to the Tribunal about the issue including as to the effect of such a finding, the importance of relying on the skill and experience of the sentencing judges in making their remarks and the relevant standard of proof. The issue was material because it went to a central issue on the review, being the nature and seriousness of the appellant’s conduct. While cl 11.1.1 of Direction 79 sets out a principle that sexual crimes are viewed seriously, the characterisation by the Tribunal of the conduct as “predatory” could affect that assessment as it could colour the range or continuum of the perceived seriousness of the offending.

We do not accept that the Tribunal’s characterisation of the appellant’s conduct as predatory did not form a critical step in its reasoning. By including an express disagreement with two judges in its reasons, the Tribunal must be taken to have regarded that characterisation as a matter of significance.

Conclusion:-

The appeal should be allowed, the orders of the primary judge set aside, and the matter remitted to the Tribunal for reconsideration according to law. As the appellant has been successful the Minister should pay his costs as agreed or taxed.

Added a post 

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021)

In light of the Delta variant of COVID-19, the Minister for Health and Medical Research made orders affecting freedoms of the citizens and imposing burdens on those unvaccinated.  The plaintiffs contend that the orders were violative of  s 51(xxiiiA) of the Constitution and that the differential treatment of unvaccinated persons were inconsistent with objects of Public Health Act.  The Court, in deciding whether or not to grant the grounds raised by the plaintiffs, assessed the impugned orders on the rights and freedoms of those persons who chose not be vaccinated.  

Facts:

The highly contagious variant of COVID-19 known as the Delta variant was first detected in the community in New South Wales in June 2021.  In response to its rapid spreading and the threat to public health, the Minister for Health and Medical Research, the Honourable Bradley Hazzard, (the “Minister”), made various orders which affected freedoms of the citizens and imposed burdens on those unvaccinated.  It prevented so-called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines.

The Kassam plaintiffs brought the proceedings who contend that the Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (“Order (No 2)”), and s 7 of the PHA, are invalid.  They are suing the Minister, the Chief Medical Officer, Dr Kerry Chant, the State of NSW (the “State parties”) and the Commonwealth of Australia as they made an informed choice to not get vaccinated. The grounds for establishing the invalidity of (Order No 2) are the following: the Minister did not undertake any real exercise of power in making the order (Ground A); that Order (No 2) is either outside of the power conferred by s 7 or represents an unreasonable exercise of the power because of its effect on fundamental rights and freedoms (Ground B); and the manner in which Order (No 2) was made was unreasonable (Ground C).

The Kassam plaintiffs further contend that the order confers powers on police officers that are inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) (Ground D). The order, along with s 7 of the PHA, are submitted by the Kassam plaintiffs as rendered invalid by s 51(xxiiiA) of the Constitution (Ground E) and otherwise inconsistent with the Australian Immunisation Register Act 2015 (Constitutions 109) (Ground F). 

Proceedings were also brought by the Henry plaintiffs as they too refuse to be vaccinated.  They sue the Minister, seeking declarations that Order (No 2) is invalid along with the Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) (the “Aged Care Order”) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the “Education Order”; and collectively the “impugned orders”).  They allege that the impugned orders are beyond the scope of s 7(2) of the PHA (Ground 1); that they were made for an improper purpose (Ground 2), that in making them the Minister failed to have regard to various relevant considerations (Ground 3); asked the wrong question or took into account irrelevant considerations (Ground 4); was obliged to but failed to afford them natural justice (Ground 5) and acted unreasonably (Ground 6).

On the evening of 3 October 2021, pending completion of the hearings, the Minister made Public Health (COVID-19 General) Order 2021, repealing Order (No 2) with effect from the beginning of 11 October 2021.  Both plaintiffs confirmed that they sought declaratory relief concerning its invalidity (or least parts of it).  Further, the Aged Care Order and the Education Order continue to have effect.

Issues:

I. Whether or not the orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution.

II. Whether or not the power limited by reference to other powers conferred by the Public Health Act as a whole. 

III. Whether or not the principle of legality engaged by impugned orders.

IV. Whether or not differential treatment of unvaccinated persons is consistent with objects of Public Health Act.

Applicable law:

Australian Immunisation Register Act 2015 (Cth) - establishes and provides for an immunisation register. 

Constitution -
provides the individual's implied right not to be conscripted to take part in a vaccination program amounting to a medical service provided to the public.

Constitution Alteration (Social Services) Act 1946 -
conferred upon the Federal Parliament legislative power to make laws for the peace, order and good government of the Commonwealth.

Disability Discrimination Act 1992 (Cth) - 
the definition of “disability” in s 4 of the DDA includes having present in a person’s body a disease and includes a disease that “may exist in the future” as well as a disability that may be “imputed to a person”.

Education Act 1990 (NSW) -
where an Education Order only applies in respect of persons physically attending “at” the places listed in subparagraphs (a), (b), (c) and (e) of the definition of relevant work. 

Education Standards Authority Act 2013 -
provides assessments of application for registration for home schooling which are carried out by authorized persons which include "inspectors" appointed pursuant to this Act. 

Evidence Act 1995 (Cth) -
wherein evidence that was given about COVID-19 vaccines, and reasons for rejecting them, was only allowed to be used to establish beliefs and opinions.

Health Insurance Act 1973 (Cth) -
where the practical effect of the scheme for the payment of medical benefits does not amount to civil conscription in that it did not compel a medical practitioner, legally or practically, to provide a service on behalf of the Commonwealth or at all to treat any patient or particular patient.

Health Records and Information Privacy Act 2002 (NSW) - 
specifies that the Act applies to, inter alia, an “organisation that ... collects, holds or uses health information”.

Interpretation Act 1987 -
supports material presumably on the basis that it confirms that the meaning of s 7(2) is “the ordinary meaning conveyed by the text of the provision”. 

Personal Information Protection Act 1998 (NSW) -
provides for the individual’s rights to anonymity and privacy.

Privacy Act 1988 (Cth) - 
precludes an “APP entity” that holds personal information that was collected for a particular purpose from using or disclosing that information to another person unless the individual has consented to the disclosure.

Public Health Act 2010 (NSW) s 3(1) -  includes “promot[ing], protect[ing] and improv[ing] public health”, “control[ling] the risks to public health” and “prevent[ing] the spread of infectious diseases” as objects of the Act.

State Emergency and Rescue Management Act 1989 (NSW) -
provides that action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under this Act.

Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) -
provides the grounds for concluding that there is a risk to public health.

Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) -
provides that unvaccinated workers not enter residential aged care facilities.

Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) -
where the Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has—

(a) had 2 doses of a COVID-19 vaccine, or

(b) been issued with a medical contraindication certificate.

Public Health (COVID-19 General) Order 2021 - made on the evening of 3 October 2021 by the Minister which repealed Order (No 2) with effect from the beginning of 11 October 2021.

Abebe v Commonwealth (1999) 197 CLR 510[1999] HCA 14 - where it was held that a contention about the supposed lack of scientific certainty about the safety and efficacy of the vaccines is a factual assertion not a relevant consideration.

Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271[1987] HCA 6-
provided that the reference in s 51(xxiiiA) to the provision of the benefits is confined to the provision of those benefits by the Commonwealth.

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1[1932] HCA 9 -
held that when the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. 

ASIC v Hellicar (2012) 247 CLR 345[2012] HCA 17 -
provided that a Jones v Dunkel inference entitles a court to, inter alia, draw an inference unfavourable to a party from their failure to call a witness whom that party would have expected to call. 

Associated Province Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1[1948] 1 KB 223 -
provided for a classic example of unreasonableness where a teacher have been dismissed because they had red hair and how such decision does not reflect a common law right, privilege or entitlement not to be discriminated against but instead are a reflection of the courts’ jurisdiction to supervise the proper exercise of public powers.

Athavle v State of New South Wales [2021] FCA 1075 -
where the basis of challenge was the effect of lockdowns on freedom of religion.

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1[2013] HCA 3 -
where if the impugned orders were found to have a legislative character, then the threshold for demonstrating that they were unreasonable is especially high.

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 -
provided that the limitation on their freedom of movement imposed by provisions was sufficient to give a “special interest” in their validity and thus standing to challenge them.

Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321[2000] HCA 7 -
provided that so far as the abrogation of particular rights are concerned, the presumption is of little assistance in construing a statutory scheme when abrogation is the “very thing which the legislation sets out to achieve”.

Baldwin v State of New South Wales [2020] NSWCA 112 -
provides the contention that clauses 4.3(3A)(b) and 5.8(3)(b) of Order (No 2) which in some circumstances require a person to produce evidence of their identity, residence and vaccination status, violate their privilege against self-incrimination.

Blatch v Archer [1774] EngR 2(1774) 1 Cowp 6398 ER 969 -
enunciated the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced.

Botany Bay City Council and Others v Minister of State for Transport and Regional Development [1996] FCA 1507(1996) 66 FCR 537 -
where the obligation to afford natural justice in relation to the impugned orders is not synonymous with someone having standing to challenge them.

Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; [1981] HCA 69 -
where if the impugned orders were classified as legislative acts, then no duty to afford procedural fairness arose, although the classification of the power as legislative is not necessarily determinative.

British Medical Authority v The Commonwealth (1949) 79 CLR 201[1949] HCA 44 - observed that one of the “most successful means of compulsion of services is to be found in the deprivation of means of subsistence”.

Castle v Director General, State Emergency Service [2008] NSWCA 231 -
stated that one limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons.

Coco v The Queen (1994) 179 CLR 427[1994] HCA 15 -
provided that absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or abrogate fundamental rights.

Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457[1910] HCA 28 - where in the context of the exercise of a power that deals with a “risk” and “its possible consequences”, “necessary” does not mean “absolutely or essentially necessary” but instead means “appropriate and adapted”.

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135[2000] HCA 5 - 
where the exercise of a statutory power is conditioned on the existence of a subjective state of mind of a public official the provision conferring the power is usually construed as though that state of mind was formed reasonably.

Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309[2004] HCA 40 -
provided that  “the assistance to be gained from [the] presumption will vary with the context in which it is applied”.

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477[1993] HCA 74 -
held that the privilege against self-incrimination protects an accused person who is required by process of law to produce documents which tend to implicate that person in the commission of the offence charged.

Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157[2011] NSWCA 174 -
considered it highly doubtful that an internal Department report not shown to have been laid before a House of Parliament can be relied upon.

G v H (1994) 181 CLR 387[1994] HCA 48 -
provided that Jones v Dunkel is but an example of the maxim enunciated in Blatch v Archer that all evidence is to be weighed according to the proof which it was in the power of one side to have produced.

Gorman v McKnight [2020] NSWCA 20 -
the High Court has not considered the judgment of La Forest, Gonthier and Cory JJ in Norberg and nor has the Court of Appeal (other than on the issue of whether consent is a defence or an element of the offence.

Griffith University v Tang (2005) 221 CLR 99[2005] HCA 7 -
provided that Professor Bhattacharya did not directly address the terms or substance of any of the impugned instruments in that case.

Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235 - 
Cavanagh J upheld a claim that they should be withheld from production under ss 130 and 131A of the Evidence Act.

Hepples v Federal Commissioner of Taxation [1992] HCA 3(1992) 173 CLR 492 -
provided that common law struck down unreasonable contractual restraints of trade, but that has nothing to do with provisions such as s 7 of the PHA.

Hunter and New England Area Health Service v A (2009) 74 NSWLR 88[2009] NSWSC 761 -
provided that what appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person’s will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.

Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 -
 an example of the maxim enunciated in Blatch v Archer that all evidence is to be weighed according to the proof which it was in the power of one side to have produced.

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCB 6015 -  
an unfair dismissal case that addressed whether an employee who objected to being vaccinated could be reinstated to work at an aged care centre.

Kioa v West (1985) 159 CLR 550[1985] HCA 81 -
where if the impugned orders were classified as legislative acts, then no duty to afford procedural fairness arose, although the classification of the power as legislative is not necessarily determinative. 

Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543[1986] FCA 290 -
where Pincus J described the various burdens on the time of Ministers which would be imposed by giving evidence in Court proceedings.

Lee v New South Wales Crime Commission (2013) 251 CLR 196[2013] HCA 39 -
 Gageler and Keane JJ stated that the “[a]pplication of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law” but “extends to the protection of fundamental principles and systemic values”. 

McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 474; [2004] FCA 1701 -
provided that orders made under s 7(2) could, depending on their content, be either an administrative act or have a legislative quality.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 -
where the ground of a failure to take into account a relevant consideration can only be made out if the Minister failed to take into account a consideration which he was bound by the statute to take into account in making that decision.

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 -
where it was held that Wednesbury, and decisions like it, do not reflect a common law right, privilege or entitlement not to be discriminated against but instead are a reflection of the courts’ jurisdiction to supervise the proper exercise of public powers.

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 -
Callian J observed that it is unnecessary to decide in this case whether the rule [in Jones v Dunkel] should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent.

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566[2006] HCA 50 -
provided that the principle in Anthony Hordern is not engaged where the two powers do not deal with the same subject matter.

Norberg v Wynrib [1992] 2 SCR 226 - 
their Honours held that not only could consent to an assault be vitiated by force, threats of force, fraud or deceit as to the nature of the defendant’s conduct (at 246) but, based on principles of “unconscionability”, found it is also vitiated where there exists proven inequality between the parties and proven “exploitation”.

P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382[1949] HCA 66 - 
a majority of the High Court held the Commonwealth exceeded its powers by entering into an intergovernmental agreement with NSW that provided for an infringement of the just terms guarantee in s 51(xxxi).

Pye v Renshaw (1951) 84 CLR 58[1951[ HCA 8 -
where the express words of s 51(xxiiiA) suggests to the contrary as do the cases just noted.  If s 51(xxxi) does not bind the States.

Reid v Sinderberry (1944) 68 CLR 504[1944] HCA 15 -
provided that the phrase “civil conscription” has its origins in the debate about whether “industrial conscription”, that is, the use of compulsory civilian labour, would or would not be deployed in the war effort, as it eventually was.

RG Capital Radio Ltd v Australian Broadcasting Authority (2001) FCR 185; [2001] FCA 855 - 
pointed to the fact that s 7 contemplates that the making of rules that may be expressed in wide terms and which attract a criminal sanction under s 10 such that in that case they would have a legislative character.

Rogers v Whitaker (1992) 175 CLR 479[1992] HCA 58 -
provided that so far as batteries occasioned by medical treatment are concerned, “the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed”.

Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 -
Payne JJA held that in order to apply the principle of legality, it is necessary to identify with a degree of precision that fundamental right, freedom or immunity which is said to be curtailed or abrogated, or that specific element of the general system of law which is similarly affected. Any presumption of non-interference by general words will carry greater or lesser weight according to the precise issues identified.

Sidaway v Bethlehem Royal Hospital Governors [1984] QB 493 -
provided that consent can be vitiated by such matters as fraud or misrepresentation although that has been limited to the nature of what has been proposed to be done.

Spencer v Commonwealth (2018) 262 FCR 344[2018] FCAFC 17 - 
where it is alleged that the State has affected an acquisition of property, s 51(xxxi) will not apply unless the State is required under an intergovernmental agreement with the Commonwealth to acquire the property on other than just terms.

State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 -
where the Crisis Policy Committee is to be treated as a Cabinet committee.

Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1996) 44 NSWLR 598; [1996] HCA 196 -
an instance of the contention that decisions affecting a very wide class of persons will not normally attract a duty to afford procedural fairness

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428[2019] HCA 2 -
set out the test for applying s 109 binding on this Court.

X7 v Australian Crime Commission (2013) 248 CLR 92[2013] HCA 29 -
provided that one of the principles and systemic values which covered the principle of construction is the accusatorial nature of the criminal justice system.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18 -
 it is not the Court’s function to determine the merits of the exercise of the power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant.

Analysis:

Order (No 2) does not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution and, even if it did, the prohibition on civil conscription does not apply to laws made by the State of NSW.  One of the main grounds of challenge in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who chose not be vaccinated, especially their “freedom” or “right” to their own bodily integrity.  The Court’s only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences.  The impugned orders do not authorise the involuntary vaccination of anyone.   

Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises.  The differential treatment of people according to their vaccination status is not arbitrary.  Instead, it applies a discrimen, namely vaccination status, that on the evidence and the approach taken by the Minister is very much consistent with the objectives of the PHA.  It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power or that it involved any failure to ask the right question or any failure to take into account relevant considerations much less that it was undertaken for an improper purpose.

The Minister was not obliged to afford the plaintiffs or anyone else procedural fairness in making the impugned orders.  The orders were also not demonstrated to be unreasonable or that its effects could be considered unreasonable.

Conclusion:

The Court concluded that the orders do not violate the right to body integrity.  Order (No 2) does not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution.  The principle of legality does not justify the reading down of s 7(2) of the PHA to preclude limitations on the freedom of movement.  No aspect of Order (No 2) was shown to be inconsistent with LEPRA.  

The Court dismissed the proceedings.  On or before 22 October 2021, the parties should confer in relation to the appropriate orders as to costs.  In the event that agreement is reached on the appropriate orders as to costs, the parties should file the proposed orders on or before 5.00pm on 25 October 2021.  In the event that no agreement is reached on the appropriate orders as to costs, each party file and serve:

(i) their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5.00pm on 29 October 2021;

(ii) any submissions in reply that do not exceed four pages on or before 5.00pm on 5 November 2021.

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Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 (14 September 2021)

Intro:-

Mr Scott Gibson (the Applicant) was convicted in the Local Court of New South Wales of eight offences contrary to ss 13(1) and 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On appeal, a District Court judge quashed the conviction for 5 charges, but re-sentenced the Applicant in respect of 3 charges and imposed a conditional release order for a term of 6 months.

Following this, the Applicant sought to have some 12 purported “questions of law” referred to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The District Court judge’s refusal to refer those questions was relayed to the Applicant through an email from the Registrar of the Local Court at Queanbeyan who advised that the judge “has advised that she is functus officio (that is, a valid result has been imposed after a lawful hearing) and she cannot reopen the case” and that, accordingly, her Honour had “declined to state a case in this matter”.

The “Questions of Law” as formulated by the Applicant for referral to the Court of Criminal Appeal were as follows:-

“1. Did the police pervert the course of justice by refusing on multiple occasions to take reports o[f] domestic violence and other offences by the PINOP, refusing to act as required by their own policy and procedures relating to domestic violence and their legal duty and by using harassment, threats and intimidation to cause additional mental health issues in a victim of domestic violence on behalf of the PINOP with whom they had a pre existing relationship?

2. Was the AVO taken by the accused (without admission) under duress?

3. Could the accused understand the potential ramifications of taking an AVO without admission given the state of his mental health and the need to escape the effects of complex PTSD and traumatic reminiscence being triggered by the police?

4. Can the court proceed to conviction and do the charges have any basis in these circumstances when there is unheard evidence that the AVO statement was false and that the accused was not in a state of mental health to argue against the AVO at the time it was taken?

5. Given that the effects of domestic abuse, childhood abuse, trauma and complex PTSD are recognised by the state, could the accused be said to have the capacity to recognise the nature and quality of the acts in the 3 sequences of which they remain convicted were breach[e]s of the law? Eg seq 1 putting hand on his heart in a gentle gesture of conciliation was deemed to be breaching the AVO.

6. In failing to provide the support services promised to the victims of domestic and childhood abuse by the state and instead seeking to prosecute the accused, did the police criminalise the individual and pervert the course of justice extending to the planting of court appointed lawyers and leaving the accused self represented whilst battling with the trauma and mental health issues and exposure to their abuser against which victims are meant to be protected in a court and thereby denying the accused his right to a fair trial?

7. Does not the law require there to be some threat of danger to a PINOP for a[n] AVO to be issued or domestic violence laws to be invoked against an accused especially in a case where the PINOP has shown herself to be a danger on multiple occasions and where the accused has passively sat through violence and abuse?

8. Seq 1: does the act of putting one[’]s hand on one[']s heart actually contravene the AVO? Is it to ‘approach or contact’ the PINOP? And if this was a breach – given the mental health issues related to the case and the effects of domestic and childhood abuse acknowledge[d] by the state could the accused be reasonabl[y] said to understand this as a breach of the law and is the requirement of Mens R[ea] met?

9. Seq 7: given that the PINOP was driving her car and turning around to film the accused whilst heading into a sharp bend was it not an act of necessity that the accused signal all is ok to the PINOP so as to act on behalf of the public and the greater good of the community to avoid an accident? Is it not also a factor for the court to consider that the PINOP was breaking the law and again given freedom from prosecution (there is video evidence of this which has been hidden by police). And if this was a breach of the AVO – given the mental health issues related to the case and the effects of domestic and childhood abuse acknowledge[d] by the state, could the accused be reasonably said to understand this as a breach of the law in a moment of concern for the wellbeing of others and is the requirement of Mens R[ea] met?

10. Seq 10: In sending a gentle and caring email offering his business to the PINOP so the accused could leave for overseas so as to escape harassment and intimidation and heal from the abuse and mental health issues that were being constantly triggered by police, did the accused have the mental capacity to understand this as a breach of the law and was there an intent (mens r[ea]) to breach the law?

11. Given that the integrity of the witness (PINOP) has been called into question by the fact she has lied which is evident through the dismissal of several sequences brought as charges against the accused, and that there is unheard evidence of the AVO statement being false and irrationality in her statements to police; does this not bring into question the whole case, the validity of the AVO and require that the question of whether the PINOP was acting to protect herself from prosecution (in conjunction with the police) and out of vindictiveness be looked at by the court?

12. Is it within the powers of police, the court and the crown to use the laws designed to protect victims of domestic violence to act against and convict a victim of domestic violence?”

The Applicant filed a Summons in this Court, seeking judicial review of the decision not to refer the “questions of law” to the Court of Criminal Appeal.

Issues:-

1) Whether the decision to refuse to refer the questions involved jurisdictional error?

2) Whether relief should be withheld even if there were jurisdictional error?

Was there a decision at all?

No formal order was made dismissing or refusing the Applicant’s request to refer questions to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). That section provides that:

“5B Case stated from District Court

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.”

Nor were any reasons published by Baly DCJ for declining the Applicant’s request. That may have been because of the somewhat irregular way in which the request was made, as has been recounted above, namely through the Registrar of the Queanbeyan Local Court.

Ms Gleeson, who appeared for the Director before this Court, submitted that an inference could be drawn that the judge did make a decision to decline to submit questions of law to the Court of Criminal Appeal and that her Honour’s reasons for this were contained in the Registrar’s email of 26 November 2020, reproduced at [7] above.

Ms Gleeson further submitted and indeed conceded that those “reasons”, insofar as they volunteered that the judge considered herself to be functus officio, involved a jurisdictional error, namely a failure to exercise jurisdiction or a mistake as to the extent of jurisdiction.

The indirect and informal communication of “reasons”, being relayed in the manner they were, namely in the form of an email from the Registrar of the Queanbeyan Local Court, was not, with respect to her Honour, entirely satisfactory. True it is that the “application” to her Honour lacked formality and regularity. But even allowing for the irregular way in which the application was made, its formal disposition was at the very least desirable for a number of reasons.

The application for judicial review in the present case was conducted on the basis that the relevant decision was one made by Baly DCJ, that her Honour declined to refer questions to the Court of Criminal Appeal, and that the decision was made on 26 November 2020 for the reasons stated in the Registrar’s email, as reproduced at [7] above. It is sufficient to consider the application for judicial review on that footing.

What was the decision and did it involve jurisdictional error?

In Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177; [1995] HCA 58, it was said that an:

“inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act... an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction”.

See also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72].

If the proper understanding of the “reasons”, as relayed to the Applicant by the Registrar, was that her Honour could not even entertain his “request”, to use the language of s 5B(2) of the Criminal Appeal Act, to refer questions to the Court of Criminal Appeal, because she had no power to do so, having already disposed of the appeal from the Local Court on 28 October 2020 and was functus officio in that sense, that would have been a jurisdictional error. This is because of the words “even though the appeal proceedings during which the question arose have been disposed of” in s 5B(2) of the Criminal Appeal Act, which make it plain that a request may be submitted to the District Court and acceded to after disposal of the appeal. Her Honour was not functus officio.

Reading the Registrar’s email and her Honour’s reasons as contained in that email as a whole, however, it is not absolutely clear that the basis of the primary judge’s reasons was that her Honour was functus officio. In this regard, the Director may have been too generous in the concession made as to jurisdictional error (see [17] above). This is so for two reasons.

First, the explanation in the first paragraph of the email to the effect that a judge has a discretion whether or not to refer questions to the Court of Criminal Appeal, and that that discretion need not be exercised favourably in the circumstances referred to, would have been irrelevant and otiose if the judge considered that she lacked power to refer the questions sought to be referred because she was functus officio. Secondly, the language of the last paragraph, namely that the judge had “declined to state a case in this matter” is consistent with her Honour considering whether or not to state a case and declining, in the exercise of her discretion, to do so. This language is not apt to convey a conclusion that a judge has no power either to accede to or to decline a request because he or she is functus officio.

Ultimately, in my view it is not necessary to decide whether the Director’s concession was correctly made. If it was and if jurisdictional error is established, relief should nevertheless be withheld because the questions sought to be referred to the Court of Criminal Appeal were plainly not “questions of law”, as that expression has been considered in the context of the Criminal Appeal Act in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr). As Bathurst CJ and I observed at [109]:

“Those questions of law should be, in our opinion, what are sometimes described as ‘pure questions of law’. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts.”

The questions propounded by the Applicant and sought to be referred to the Court of Criminal Appeal as set out above do not meet this description. They were for the most part either questions of fact, or questions of mixed fact and law. Proposed questions 6 and 12 reflect a grievance that the Applicant no doubt sincerely felt, but they are not questions of law that properly arose in the course of the proceedings below.

Any jurisdictional error may thus be regarded as “immaterial”: see MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [27]- [39]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3.

Alternatively, relief should be withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility: see Charara v The Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 at [62]- [63]; Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [6]- [8]; and Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253. That is to say, were the decision quashed and the matter remitted for determination in accordance with law, the form of the questions propounded by the Applicant and sought to be referred was such that the Court could be confident that they would not be referred because they were not in truth questions of law.

If the Director’s concession as to jurisdictional error was not well made, and the proper interpretation of the “reasons” was that her Honour declined in the exercise of her discretion to accede to the Applicant’s request that questions be referred to the Court of Criminal Appeal, this would not have been a jurisdictional error which would engage this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). This would be so even if the judge committed some error in her analysis as to whether or not the questions involved questions of law.

To this extent, I have reservations as to the correctness of an aspect of the recent decision in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83, where it was held that the District Court judge committed jurisdictional error by not referring a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act on the basis that he considered it was a question of mixed fact and law. His Honour may or may not have erred in his characterisation of the question sought to be referred, but it is strongly to be doubted that this was a “jurisdictional error”. An error of law made within jurisdiction is not a jurisdictional error: see, for example, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales (2014) 242 IR 338; [2014] NSWCA 116; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379; see also Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29, where Basten JA (with whom Bathurst CJ and Beazley P agreed) observed that:

“If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record , and, in the case of a privative clause, only where an error is properly characterised as jurisdictional.”

Furthermore, s 5B of the Criminal Appeal Act operates to permit questions of law to be referred. It does not exist for the purpose of the correction of errors of law made by a District Court judge hearing an appeal from the Local Court: see Orr at [105]. As Basten JA said in Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162:-

“The effect of the privative clause in s 176 of the District Court Act is to confer power to determine all questions of law on the District Court judge, such determinations being unreviewable unless the judge has mistaken his or her function, and in doing so has exceeded, or failed to exercise, the jurisdiction of the court.”

The only qualification to this passage is, of course, where a District Court judge exercises the jurisdiction conferred by s 5B of the Criminal Appeal Act to refer questions of law to the Court of Criminal Appeal.

Conclusion:-

Mr Gibson’s application should be dismissed with costs.

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Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021)

Intro:-

The appellants, Fairfax Media Publications Pty Ltd, Nationwide News Pty Limited and Australian News Channel Pty Ltd, publish newspapers which circulate in New South Wales or operate television stations, or both. They each maintain a public Facebook page on which they post content relating to news stories and provide hyperlinks to those stories on their website. They invite comment on the posted content from members of the public who are Facebook users. Comments which are made appear on the Facebook page and are available to be seen by other Facebook users.

2 In each of the three proceedings brought in the Supreme Court of New South Wales, the respondent claimed that following the appellants posting about particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.

Facts:-

The appellants each maintain a public Facebook page on terms of use agreed with Facebook. The page is used by each appellant to share content and connect with Facebook users. The page is publicly accessible to users, who are able to view and comment on content posted to that page.

The use by each appellant of their Facebook page usually involves the posting of a hyperlink to a news story, with a headline, a comment and an image. Clicking on the hyperlink takes the reader to the full story on an appellant's news website. Readers are invited, by options which appear under the post, to "Like", "Comment" on or "Share" the post. These options are standard features of a Facebook page. Comments which are made by users appear on the page and are available to be seen by all Facebook users who can see the page.

The Facebook page used by each appellant is managed by a Page administrator, the person or persons authorised by the appellant to administer it in accordance with Facebook's terms of use. There was evidence before the primary judge, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked. Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to "hide" most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook "friends". Hidden comments could then be individually assessed by an administrator. If sufficient staff were allocated to perform this task, comments could be monitored and un-hidden if approved by an administrator.

The primary judge found, as might be anticipated, that certain posts would be expected to draw adverse comments about the person who was the subject of the news story. It was not in dispute that the use of a Facebook page encourages and facilitates visits by third-party users to a media outlet's own website. The number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and the revenue from advertising on both the page and the digital newspaper or broadcast.

The appellants' contentions

The appellants now contend that the common law requires that the publication of defamatory matter be intentional. It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words. This is said to follow from what was said by Isaacs J in Webb v Bloch and to accord with the holding in Trkulja v Google LLC, that Google's intentional participation in the communication of the defamatory matter supported a finding of publication.

As mentioned earlier in these reasons, the appellants do not rely on the statutory defence of innocent dissemination as providing an answer to whether they are publishers of the alleged defamatory material. However, they submit that the cases which concern the common law defence of innocent dissemination, commencing with Emmens v Pottle[17], support a requirement of intention to publish defamatory matter. They submit that the cases show that publication is more than mere dissemination. Publication is dissemination with an element of intention.

A focus on the intention of a putative publisher to communicate the matter complained of is also said to explain the cases concerning whether occupiers are publishers of defamatory statements affixed to their premises or structures by unauthorised third parties, the appellants contend. These cases hold that, to be a publisher, an occupier must have consented to, approved of, adopted or promoted the continued presence of the statements, such that it can be said the occupier accepted responsibility for their presence. The question of publication is therefore determined by the courts by drawing an inference that the occupier intends to communicate the matter, the appellants contend. No such deliberate act is present in these appeals which would permit an inference of intention on the part of the appellants to be drawn, it is submitted.

The appellants' contentions are not supported by authority and cannot be accepted.

Issues:-

1) Were the appellants "publishers" of comments by the third-party Facebook users?

2) Is an intention to communicate defamatory matter necessary for appellants to be publishers?

Publication and intention

In the law of defamation, harm is understood to be occasioned to a person's reputation when a defamatory publication is made to a third party. Publication is the actionable wrong. In Dow Jones & Co Inc v Gutnick, publication was described as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension. Publication may therefore be understood as the process by which a defamatory statement or imputation is conveyed.

In Trkulja v Google LLC, it was said that "[i]n point of principle, the law as to publication is tolerably clear". The judgment of Isaacs J in Webb v Bloch was cited for that proposition. In that case, Isaacs J drew upon texts to identify who may be a publisher. Folkarddescribed the word "published" as a technical term in the law of libel. It is used, he said:-

"without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him".

Starkie said that all persons who:-

"are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication".

Part of the quotation from Folkard ("has intentionally lent his assistance to its existence for the purpose of being published") is relied on by the appellants as supporting their argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. The argument is inconsistent with the common law rule relating to publication and, as shall be explained, it derives no support from what was said in Webb v Bloch.

An action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. The intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher's liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it.

The liability of a person as a publisher "depends upon mere communication of the defamatory matter to a third person", Dixon J saidin Lee v Wilson & Mackinnon. No question as to the knowledge or intention of the publisher arises. His Honour said "[t]he communication may be quite unintentional, and the publisher may be unaware of the defamatory matter", but the person communicating the defamatory matter will nevertheless be liable. The exception identified by his Honour was the case of certain booksellers, news vendors and messengers, to which reference will later be made.

The appellants' argument that a person must intend to publish the defamatory matter gains no support from what was said in Trkulja v Google LLC. On an application for summary dismissal of the plaintiff's claim of defamation, the primary judge had held that it was strongly arguable that Google's "intentional participation" in the communication of the alleged defamatory material to users of the Google search engine supported a finding that Google was a publisher.

This Court upheld that finding, but criticised the intermediate appellate court for proceeding to make a determinative finding as to publication. The issue concerning publication required consideration of "the nature and extent of Google's involvement in the compilation and publication of its search engine results", the Court said, and this could not be known with any certainty until after discovery[30]. Adopting the quotation in Webb v Bloch from Folkard, the Court said that "all degrees of participation in the publication" of defamatory matter are publication. Far from supporting the appellants' argument as to intention, Trkulja v Google LLC confirms that the correct meaning of publication, which was given in Webb v Bloch, is that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.

Putting to one side the exception created by the defence of innocent dissemination, the publication rule has always been understood to have a very wide operation. In Crookes v Newton, a decision of the Supreme Court of Canada, Abella J remarked that "the breadth of activity captured by the traditional publication rule is vast". Her Honour gave as an example a case in which a printer's employee, whose only role in a publication was to "clap down" the printing press, was held liable for the libels contained in the publication even though he was unaware of its contents.

Consistently with Trkulja v Google LLC and the publication rule, Webb v Bloch is to be understood to say that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

Isaacs J in Webb v Bloch may be understood to acknowledge that publication may involve acts of participation other than, and which may precede, the actual physical distribution of the defamatory material. His Honour is not to be understood to say that a person must intend to communicate the material complained of as defamatory in order to be a publisher.

Innocent dissemination

As Ribeiro PJ observed in Oriental Press Group Ltd v Fevaworks Solutions Ltd, "[t]he strictness of the publication rule plainly called for some relaxation". Emmens v Pottle is generally taken as the starting point of what came to be called the common law defence of innocent dissemination, which was developed by the courts to mitigate the harshness of the law relating to publication. Vizetelly v Mudie's Select Library Ltd took up the new "doctrine"[.

Emmens v Pottle concerned persons in the business of selling newspapers. Lord Esher held that although such a person may be prima facie liable as a publisher, if they are able to show that they did not know that the newspaper was likely to contain a libel and their lack of knowledge was not the result of their own negligence they will not be liable for the libel.

Vizetelly involved a circulating library. The "defence" also came to extend to persons who conducted the business of bookseller or messenger. What they had in common was that they were mere distributors or disseminators. They were lesser or subordinate publishers, not primary publishers. The latter could not take advantage of the defence. The defence could be described as one special to distributors.

The views expressed by their Honours should be accepted as the explanation of what a successful "defence" of innocent dissemination achieves. It is not that publication is to be taken not to have occurred. In providing for the defence, the courts are to be understood simply to except from liability a defendant who would otherwise have been liable as a publisher. Such an approach was followed by the Hong Kong Court of Final Appeal in Oriental Press. It accords with the fact that the common law continues to apply the rule of publication for publishers, other than innocent distributors or disseminators, who are not primary publishers.

Byrne v Deane

The other line of cases upon which the appellants rely commences with Byrne v Deane. The appellants seek to draw from cases of this kind that an occupier may become liable as a publisher of a defamatory statement affixed to their premises if it may be inferred that they intended the publication to continue. Such an inference may be drawn where an occupier has consented to, adopted or approved the continuance of the publication.

Cases such as Byrne v Deane do not establish a different rule for publication, one based upon the intention of occupiers, as the appellants contend. They involve the application of the general rule of publication to a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher. The time when the occupier becomes aware of the publication of the material marks the point from which the occupier's conduct or inaction is assessed to determine whether they can be said to have participated in the continuing publication. Cases of this kind are not useful to explain the involvement of others in publications in very different circumstances[69] and are not of assistance in this case.

Conclusion:-

The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

The appeals should be dismissed with costs

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Vargas v Minister for Home Affairs [2021] FCAFC 162 (3 September 2021)

Intro:-

The appellant, Mr Mendieta Vargas, appeals from a judgment of a single judge of this Court delivered on 25 March 2021. The primary judge dismissed an application for judicial review of the Minister for Home Affair’s decision to set aside a decision of the Administrative Appeals Tribunal, made under s 501(3A) of the Migration Act 1958 (Cth) to revoke the cancellation of his partner visa, and instead to cancel that visa pursuant to s 501BA(2) of the Migration Act.

Facts:-

Mr Mendieta Vargas is a citizen of the Republic of Colombia who arrived in Australia in August 2012. He was granted a partner visa on arrival.

On 6 June 2018, Mr Mendieta Vargas was convicted in the District Court of Queensland on 10 counts of domestic violence against his former spouse and 20 counts of fraud. In respect of the domestic violence offences, he was sentenced to three years’ imprisonment, suspended for a period of five years after he had served 12 months. At the time of offending, he was 22 years of age.

On 6 August 2018, a delegate of the Minister cancelled Mr Mendieta Vargas’ visa as required by s 501(3A) of the Migration Act. It is not in dispute that Mr Mendieta Vargas did not pass the character test in s 501(3A)(a)(i) of the Migration Act, because of the operation of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentenced to a term of imprisonment of 12 months or more).

Mr Mendieta Vargas sought revocation of that decision on 7 August 2018, and on 18 June 2019, a delegate of the Minister decided not to revoke the cancellation decision. Mr Mendieta Vargas sought review of that decision in the Tribunal. On 11 September 2019, the Tribunal set aside the decision of the delegate and Mr Mendieta Vargas’ visa was reinstated that day. He was also released from immigration detention

On 16 September 2019, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs requested the Department of Home Affairs to prepare a submission for him to consider exercising his power under s 501BA of the Act.

On 12 February 2020, the Minister set aside the Tribunal’s decision and cancelled Mr Mendieta Vargas’ visa pursuant to s 501BA(2) of the Act on the basis that the cancellation of his visa was in the national interest. The Minister’s reasons record:

"I find that the considerations favouring non-cancellation in particular the best interests of the affected children treated as a primary consideration, and Mr MENDIETA VARGAS’ ties to Australia and the hardship to him and his family members, are outweighed by the national interest considerations referred to above and I have decided to exercise my power under s 501BA of the Act to set aside the original decision of the Administrative Appeals Tribunal of 11 September 2019 and to cancel Mr MENDIETA VARGAS’s Class BC Subclass 100 (Partner) visa."

Grounds of appeal

In this Court, Mr Mendieta Vargas agitates essentially the same grounds. He contends that the primary judge erred in:

Ground one

Failing to find that [the] Respondent’s refusal to afford the Appellant natural justice was unreasonable; and
finding that such an argument ‘is not open’ ([33]).

Particulars

The Respondent’s decision to refuse to afford natural justice, in the process of, or leading up to, the exercise [of] his power in s 501BA(2) of the Migration Act 1958 (Cth), is not the subject of any evident and intelligible justification that is express nor can be reasonable inferred. The learned primary judge erred in failing to so find.

The learned primary judge erred in that he found at [32] of his reasons that the Respondent had made a ‘decision’ not to afford the Appellant natural justice, but at [33] that an argument of unreasonableness in respect of such a decision ‘is not open’.

Ground two

Holding that at [61] of the Respondent’s reasons, there was no finding of fact that the Appellant ‘is a threat to all women’ (the Proposition), and/or that ‘noting with concern’ the Proposition did not amount to doing so as part of the Respondent’s reasoning process ([42]); and

Failing to find that such finding of, or reasoning involving, the Proposition, is illogical, irrational or unreasonable because it was one that was not open on the evidence and/or one for which there was no rationally probative evidence, and/or one reached on an assessment of only some of the evidence and submissions available to him.

Particulars

(a) Properly construed, what the Respondent set out at [61] of his reasons was either a finding of the Proposition, or at least reasoning involving the Proposition and on the way or along the way to his decision. The learned primary judge erred in failing so to find.

(b) The Appellant had only committed offences against one woman (his ex-partner) and there was no evidence that the Appellant had ever threatened any other woman at any time in his life. The only forensic expert opinion before the Respondent as to the Appellant’s risk of re-offending was that it was in the ‘low category’.

(c) The Tribunal found, on the basis of submissions and evidence (including inferences drawn as to the Appellant’s genuineness from his oral evidence), being submissions and evidence available to the Respondent but not considered by him, that the Appellant ‘presents with a genuinely low risk of reoffending, both in a domestic violence context and more generally’.

Ground three

Failing to find that the Respondent did not apply any active intellectual process to the matters that were set out at [45]-[68] of the Respondent’s reasons ([47]).

Particulars

The Respondent’s reasons disclose that the matters at [45]-[68] were only ‘noted’, ‘acknowledged’, asserted to have been given ‘consideration’, or were ‘taken into account’ or were the subject of ‘regard’, none of which constituted any active intellectual process.

Ground four

Finding that the evidence and/or submissions before the Tribunal in making its anterior decision were not a mandatory relevant consideration for the Respondent ([53]).

There is also a preliminary issue raised as to the competency of the first ground of appeal on the basis that, by reason of s 476A(1) of the Migration Act, the Federal Court has no jurisdiction to review the choice of the Minister not to afford Mr Mendieta Vargas natural justice in exercising the power in s 501BA(2) of the Act.

Issues:-

1. whether the Minister’s choice not to afford Mr Mendieta Vargas natural justice was legally unreasonable;

2. whether the Minister’s statement that he noted ‘with concern’ a particular conclusion drawn by the Tribunal was irrational;

3. whether the Minister considered factors pertaining to the risk posed by Mr Mendieta Vargas in a meaningful way; and

4. whether the evidence given, and submissions made, to the Tribunal by Mr Mendieta Vargas were mandatory relevant considerations in the exercise of the power under s 501BA(2).

Analysis:-

Was it legally unreasonable to refuse to afford natural justice?

As to Ground one, the Minister contends that, properly understood, Ground one requires this Court to go behind the legislative choice embodied in the enactment of s 501BA(3), through the imposition of an implication of reasonableness in the Minister’s choice as to whether to afford natural justice. As both parties accepted, the appellant’s challenge was not to the reasonableness of the substantive exercise of power but to the Minister’s anterior choice or determination not to afford natural justice.

The construction of s 501BA(2) was considered by the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12. In that case, the Minister had proceeded on the understanding that he was in fact precluded from inviting the appellant to make a submission before considering the exercise of the power in s 501BA(2). The Full Court said (at [22]-[23], [26]):

As already noted, ss 501BA(3) and 501(5) stand in contrast with s 501CA(3).While s 501CA(3) requires that a person who may be the subject of an order under that section be given the opportunity to make representations to the Minister, each of ss 501BA(3) and 501(5) provide expressly that the rules of natural justice do not apply to the decisions to which they refer.

However, on its face, the effect of s 501BA(3) is only to remove any obligation on the Minister to apply the rules of natural justice when making a decision under subs (2). It does not oblige the Minister to make the decision without applying those rules.

...

...[s 501BA(3)] is simply an incident of the power vested in the Minister by s 501BA(2). That being so, it is not “extra-statutory”. Section 501BA(3) is to be understood as removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so. It is for the Minister to decide, within the limits of the Act, how he or she will go about making the decision contemplated by s 502BA(2).

Unlike the circumstances in Ibrahim, the Minister was not ignorant of the choice he was afforded by s 501BA(3). The Minister said:

"[9] Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). While this means that I am not required to apply the rules of natural justice when making a decision under s501BA(2), by giving the affected person an opportunity to be heard before making the decision, I am aware that s501BA(3) does not prohibit me from affording such an opportunity.

[10] In this case, I chose to proceed without giving Mr MENDIETA VARGAS an opportunity to be heard before making my decision. I am cognisant that as a consequence, Mr MENDIETA VARGAS has not had an opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance Mr MENDIETA VARGAS’ family includes his two minor children, his mother and younger brother.

[11] I have, however, given consideration to representations made by Mr MENDIETA VARGAS in relation to the original decision and in the AAT proceedings, which resulted in the AAT revoking the decision to cancel Mr MENDIETA VARGAS’ visa."

The only ‘decision’ to be made by the Minister under s 501BA(2) is whether to cancel a visa that has been granted to a person, if the Minister is satisfied that the cancellation is in the national interest (emphasis added). There is no anterior decision to be made about whether the Minister is or is not satisfied that natural justice should be afforded. Section 501BA(3) states unequivocally that natural justice does not apply to a decision made under subsection (2) (emphasis added).

When considering the analogous provision in s 501(3), the Full Court in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 said:

"...The legal principle articulated in Burgess, and by the primary judge at [81], does not involve the proposition that the power in s 501(3) is conditioned by an obligation to consider whether to afford procedural fairness or – to use the language of the statute – conditioned by an obligation to consider whether to afford natural justice. Whichever term is used, the principles of procedural fairness or natural justice involve an entitlement on the part of the person affected by the exercise of the power (to be given a reasonable opportunity to be heard, to have adverse information relevant to the exercise of the power drawn to her or his attention, to be fairly apprised of the matters which might lead a decision-maker to exercise the power adversely to the person, and so on), and they involve a legal obligation or duty imposed on the decision-maker with corresponding content.

That is not what the Court in Burgess described, nor what the primary judge described. Nor is it what the Court in Ibrahim described. The power which those decisions describe, and which all judges have found is not prohibited or excluded from s 501BA(3) or from s 501(3), is a power in the Minister to seek, or request, further information before exercising the power. The information may be sought from the visa holder. It may be sought from a third party or from the Department (for example, country information). It is a facilitative power to assist the Minister in reaching the correct or preferable decision and to assist the Minister to ensure she or he has sufficient probative material to support the findings and conclusions she or he may be inclined to make." (emphasis added).

The primary judge correctly identified that this case is distinguishable from Ibrahim, particularly having regard to the circumstances of Ibrahim where the Minister was aware of certain circumstances that may have altered his decision had he not erroneously thought he was precluded from affording the applicant in that case natural justice (Reasons at [33]).

Nevertheless, as an incident of the exercise of the power, the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality (Brown at [31]). Mr Mendieta Vargas contends that the relevant species of illegality in this case is legal unreasonableness.

Paragraphs [9]-[11] of the Minister’s reasons set out above provide an intelligible justification for the Minister’s choice not to afford natural justice. He was conscious that the statute did not require him to do so, but also that he had the alternative choice. Paragraph [11] reveals that the Minister had considered the representations made by Mr Mendieta Vargas to the Tribunal. That gives rise to the logical inference that the Minister considered he ‘had sufficient probative material to support the findings’ he was inclined to make. Indeed, Mr Mendieta Vargas conceded during oral argument that the Minister had sufficient probative materials before him, but argued that affording him natural justice would have given the Minister additional information.

Although the documents referred to do not appear on the table of evidence, it is clear that the Minister was referred to the relevant information. The Minister stated in his Reasons that he had regard to Mr Mendieta Vargas’ account of the offences, including that his former partner ‘struck him in the face’ (Minister’s reasons at [40]).

The Minister noted Dr Freeman’s addendum report in which he referred to Mr Mendieta Vargas’ completion of an intensive stress and anger management program (Minister’s reasons at [55]).

The Minister recounted Mr Mendieta Vargas’ explanation of his offending and his remorse and insight (Minister’s reasons at [47]-[50]) and the strategies to manage risk factors (Minister’s reasons at [63]).

Given that the Minister took into account the aforementioned materials, there is no merit in the contention that additional relevant materials contained in the documents referred to were not before the Minister nor that the other matters described in the affidavit could have made any material difference to the Minister’s decision.

The Minister’s decision under s 501BA(2) to cancel Mr Mendieta Vargas’ visa without affording him natural justice does not reach the threshold of being one where no logical or rational person could reach the same decision on the material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.

Did the Minister make a finding of fact that Mr Mendieta Vargas is a threat to all women?

As to Ground two, Mr Mendieta Vargas contends that the Minister made a finding of fact, or at least engaged in ‘reasoning along the way’, that Mr Mendieta Vargas is a threat to all women when he said, (Minister’s reasons at [61]):

"I note with concern the AAT’s conclusion that ‘simply because the Applicant has offended – albeit seriously and potentially catastrophically – against this particular victim/woman, does not mean he is a threat to all women."

As the primary judge observed, the Minister’s reasons do not suggest that he made such a finding of fact (Reasons at [42]). No doubt he was disagreeing with the Tribunal’s apparent down-playing of the serious nature of the violent offending against his victim but expressing that disagreement, in the absence of anything else in the Minister’s reasons to suggest that the Minister had reached such a conclusion, does not go so far as to amount to ‘reasoning along the way’ to an illogical and irrational finding sufficient to constitute jurisdictional error: cf DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2.

The Minister’s reasons reveal that he considered the psychological assessment provided by Professor Freeman and weighed that against his persistent offending and limited insight. He found ‘there is an ongoing risk that he will reoffend’ not that Mr Mendieta Vargas was a risk to all women. Further, the Minister recorded that if Mr Mendieta Vargas did engage in similar conduct, it could result in conduct that could cause harm to a member of the Australian community (emphasis added). The Minister’s summary weighs the risk of Mr Mendieta Vargas’ reoffending against the nature and seriousness of his criminal history and the risk to the Australian community. None of this language is consistent with a finding of fact that Mr Mendieta Vargas is a threat to all women.

The primary judge was correct to conclude there was no such finding made by the Minister (Reasons at [42]). Consequently, it is unnecessary to consider whether, had such a finding been made, it was illogical, irrational or unreasonable.

Ground two cannot succeed.

Did the Minister fail to apply any active intellectual process?

As to Ground three, Mr Mendieta Vargas contends that the Minister did not apply any active intellectual process to the matters that were set out at [45]-[66] of the Minister’s reasons and that the primary judge erred in failing to find so.

The requirement to apply an active intellectual process to weighing the factors that bear upon a decision arises as a necessary incident of the Minister’s task

Unlike the Assistant Minister’s statement of reasons in Hands, the Minister’s reasons demonstrate that he applied an active intellectual process to the matters that bore on his decision as to whether he was satisfied that the cancellation of Mr Mendieta Vargas’ visa was in the national interest. As was observed by the primary judge, Mr Mendieta Vargas bore the onus of establishing that the Minister did not, in fact, reach that state of satisfaction such that he could lawfully exercise the power under s 501BA(2)(b) (Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24]).

Mr Mendieta Vargas contends that the Minister’s use of words such as ‘noted’, ‘acknowledged’, ‘considered’, were ‘taken into account’ or ‘had regard to’ is inadequate for the reasons explained by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [35].

Mr Mendieta Vargas contended further that the Minister used such expressions when considering matters favourable to him. By contrast, it is said that the Minister expressly explained himself when referring to unfavourable matters by prefacing his statements with words such as ‘as explained by’, ‘demonstrative of’, ‘place greater weight on’, and ‘find that the custodial sentences are a further indication of the seriousness’. The contention that these semantic differences demonstrate a lack of any active intellectual process does not withstand scrutiny when the Minister’s reasons are read fairly and as a whole, particularly when there is no assertion that any relevant matters were overlooked by the Minister.

Having set out the various matters which he had variously ‘noted’, ‘acknowledged’, ‘considered’, ‘taken into account’ or ‘had regard to’ in paragraphs [45]-[66], the Minister made findings and drew conclusions relevant to the matter he had to determine, namely whether it was in the national interest for Mr Mendieta Vargas’ visa to be cancelled, particularly at [67]-[71] as set out above.

Ground three cannot succeed.

Were the evidence and/or submissions before the Tribunal mandatory relevant considerations for the Minister?

As to Ground four, Mr Mendieta Vargas contended that the primary judge ought to have held that the evidence and/or the submissions before the Tribunal were a mandatory relevant consideration for the Minister. This contention was based on the proposition that materials that were before the Tribunal, being the documents referred to in Mr White’s affidavit, were apparently not sent to the Minister. It was said that the Minister had constructive knowledge of those documents, they having been in evidence before the Tribunal, and so had a duty to take them into account.

The primary judge held, with respect, correctly, that the power under s 501BA is fundamentally different from that which is exercised under s 501CA (Reasons at [51]). Section 501CA requires the Minister to invite representations from the applicant and, having received and considered those representations, for the Minister to be satisfied that the person passes the character test or that there is another reason why the decision should be revoked. There is no correlative requirement in s 501BA. To the contrary, as submitted by the Minister, s 501BA does not require the Minister to have regard to any particular matter in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA(2). As has been observed however in the discussion above in relation to Ground one, should the Minister discern that there is insufficient probative material before him or her, s 501BA(3) does not preclude the Minister from asking for further material.

Consequently, failing to consider material that was before the Tribunal during the revocation process (which at best was a permissive factor that bore upon the Minister’s state of satisfaction under s 501BA(2)(b)) could not, without more, go to jurisdiction. In any event, as has been described at paras [37]-[41] of this judgment, it is apparent that the substance of the matters in the documents that were before the Tribunal was also before the Minister. There was no submission that the additional matters deposed to in Ms White’s affidavit at [6](d)-(i) were before the Tribunal.

Ground Four cannot succeed.

Conclusion:-

The appeal should be dismissed.

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McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152 (23 August 2021)

Intro:-

The appellant’s visa was cancelled by operation of s 501(3A) of the Migration Act 1958 (Cth) on 23 April 2018. On 23 August 2019, exercising the power in s 501CA(4) of the Migration Act, the Minister refused to revoke the cancellation. The appellant sought judicial review of that decision.

Facts:-

Born in the Cook Islands, the appellant was not raised by his birth mother or father. He was initially raised and cared for by a woman in the Cook Islands, who passed away when the appellant was 6 years old. The carer’s daughter and son-in-law were Maryanne and Kevin McHugh. Maryanne McHugh was also a Cook Islander, and therefore a citizen of New Zealand. Kevin McHugh was an Australian citizen. The appellant was brought to Australia in 1975 by Maryanne and Kevin McHugh, who were shortly thereafter to become his adoptive parents. When the appellant first arrived in Australia with his adoptive parents, a passenger card was filled out for him. At the time he was 7 years old. The passenger card identified his country of birth as “Rarotonga”. It identified his country of citizenship as “Australia”. This is the earliest record of an assertion of Australian citizenship in relation to Mr McHugh.

Mr McHugh was formally adopted under Queensland law by Kevin and Maryanne McHugh on 2 November 1976. A new birth certificate was issued two days later, showing his adoptive parents as if they had been his parents since his birth, with their ages entered to reflect their ages at the time of his birth, rather than at the date of his adoption in 1976. That meant his adoptive mother was shown as being 19 years old at the time of his birth and his adoptive father as being 15 years old. In fact when they adopted Mr McHugh they were 28 and 23 years old respectively. In this way, Mr McHugh’s birth certificate issued after his adoption was evidence of the legal fiction that they were entitled to be treated as if they had always been his parents, and he had always been their child.

Mr McHugh thereafter resided in Australia. In 1986, when Mr McHugh had turned 18, he deposes in his affidavit read in the proceeding before the primary judge, that:-

"the electoral office wrote to me and told me I was eligible to vote."

He deposed, and I accept, that he voted in the federal election in July 1987, when he was living with his aunt and uncle in Toowoomba. That was the only time he has voted. He explained not voting again in the following way:

"I did not vote again because I moved around the country working and living rough and in remote Aboriginal communities a lot."

The appellant’s solicitor searched the records of the Australian Electoral Commission for Queensland and found on the roll the names of Mr McHugh and his adoptive parents. He deposed that their names appeared for the electorate of Maranoa, with Mr McHugh being recorded as living in Brookstead. The extract from the roll is in evidence and I accept it does contain these details.

Mr McHugh deposed, and I accept, that in October 2017 he applied for a passport. He did so because he needed more identification to live in a hotel. In his passport application, he nominated his Australian birth certificate, with its number and date. He stated that he had been born at Atiu in the Cook Islands. He left blank the parts of the form dealing with production of an Australian citizenship certificate. He indicated he had not been issued with an Australian passport before. He also attached his Medicare Card and bank statement. He had a guarantor for the application (as required), who had filled out the relevant parts of the form. An officer checked the boxes indicating the officer had sighted Mr McHugh’s current address and photo identification.

The passport issued to Mr McHugh is in evidence. It was issued on 25 October 2017. Counsel for the appellant placed some reliance on what the appellant’s solicitor described in his affidavit as the “safe passage” indorsement on every Australian passport. That indorsement is annexed to the affidavit of the appellant’s solicitor, Mr Coffey. The indorsement states:

"The Governor-General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer, an Australian Citizen, to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need."

Mr McHugh was entitled to relief of this kind, counsel submitted, because the executive had represented to him, at various points over a period of 31 years, that he was an Australian citizen, and Mr McHugh had relied on that representation to his detriment. In those circumstances, and despite the unusual nature of the relief sought, it was in the interests of justice that the Minister be estopped in any future exercise of power from treating Mr McHugh as if he was a non-citizen. Alternatively, and more narrowly, it was contended that in refusing to revoke the visa cancellation under s 501CA(4), the Minister had acted “contrary to the principles of equity, including having regard to the [Minister’s] equitable obligations to the Appellant”. Counsel submitted the primary judge should have upheld both these arguments and granted appropriate relief.

In support of the contended need for the intervention of equity, counsel for Mr McHugh also relied upon what was said to have been the obligations of the responsible Minister at the time while Mr McHugh was a minor, under the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act).

Issues:-

a) did the Australian officials' conduct in treating the appellant as an Australian citizen, and representing to him that he was able to be treated as one give rise to an equitable estoppel in favour of the appellant that is enforceable against the Minister in relation to appellant being treated as a non-citizen for the purposes of the Migration Act, 1959 (Cth).

b) did the appellant fall within the terms of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) and did the Minister breach any  obligation owed to the appellant under the IGOC Act?

Analysis:-

Findings on the elements of estoppel

For the purposes of the appellant’s estoppel arguments, I accept the following propositions are made out on the evidence.

(a) The grant and issuing of a passport to Mr McHugh was a representation on behalf of the Commonwealth to Mr McHugh that he was accepted as an Australian citizen: see Australian Passports Act 2005 (Cth), s 8.

(b) Further, the indorsement on Mr McHugh’s passport was, I accept, a representation to other sovereign states by the Commonwealth of Australia that Mr McHugh was an Australian citizen

(c) The invitation to Mr McHugh to enrol as an elector, and his entry onto the electoral roll were also representations to Mr McHugh on behalf of the Commonwealth that he was accepted by the Commonwealth as an Australian citizen: See Commonwealth Electoral Act 1918 (Cth)

(d) Mr McHugh relied on these representations, as his unchallenged affidavit evidence demonstrates.

"If I had known I was not regarded as a citizen when I applied for my passport I would not have applied for a passport and would have immediately applied for citizenship. I also would have applied for citizenship if I had been told then that I could not get a passport because I was not a citizen."

(e) Mr McHugh’s reliance on the representations made to him was reasonable in the circumstances. I find he genuinely believed he was an Australian citizen until 2018.

(f) On his own evidence, Mr McHugh relied on those representations to his detriment because he did not take any action to apply for citizenship, as he already thought he had it.

Notwithstanding those findings, as I explain below, the tide of authority is firmly against the proposition that those facts, and the Court’s findings about them, are capable of giving rise to an equitable estoppel in favour of Mr McHugh that is enforceable against the Minister in relation to Mr McHugh being treated as a non-citizen for the purposes of the Migration Act.

The Tide Of Authority

The primary judge undertook a comprehensive survey of the relevant authorities from [152]-[164] of his reasons. While the appellant sought to distinguish some of the authorities on their facts, his counsel did not in substance shy away from the proposition that what this Court was being invited to do would represent a significant development in Australian law. If that development is to occur, given the tide of authority against it, that would be a matter for the High Court and not this Court.

It has been repeatedly held that the manner in which a repository of a statutory discretionary power exercises that power cannot be affected by principles of equitable estoppel because to do so would be to hinder or interfere with the exercise of that power in the way Parliament intended.

Rejection of the creation of constraints on the exercise of power which are external to the express and implied constraints imposed by the statute (or by the Constitution) also explains the rejection in Australian law of the concept of a constraint on statutory power because of the “legitimate expectation” of a person affected by the exercise of that power: see Re Minister for Immigration; Ex parte Lam [2003] HCA 6; 214 CLR 1.

The Minister must exercise the power in s 501CA(4) by taking into account the representations made to him concerning revocation. Since a representation about Mr McHugh’s mistaken treatment as an Australian citizen has been made, the Minister’s obligation is to consider and engage in an active intellectual sense with that representation. The Minister is not obliged to treat that factor as overwhelming all other considerations, or as dictating a particular outcome for the exercise of power. Yet that is what the appellant submits should occur.

The appellant’s submissions must therefore be rejected on established principle.

The appellant relied on developments in equitable estoppel in public law in other jurisdictions, notably the United Kingdom and the United States. In particular, counsel directed the Court to a recent decision of the US Court of Appeals, Second Circuit. The decision is reported as Schwebel v Crandall (2020) 967 F.3d 96, and concerned a German citizen who had resided in the United States since she was 8 years old. She had been denied adjustment of her status to lawful permanent residence. The conduct said to give rise to estoppel occurred in the context of an announcement by the US Department of State about a limited time period to apply for certain visas and the submission of a visa application by Ms Schwebel a few days before the application period ended. The conduct was described by the Court in the following way:

"The United States Citizenship and Immigration Services (‘‘USCIS’’) received the application four days early, but, in violation of its internal procedures, it failed to advise Schwebel of any issue with or defect in her application. Instead, despite inquiries from Schwebel’s lawyer, USCIS did not respond for several years, at which point it advised Schwebel that she was required to submit a new application. By then, circumstances had changed such that Schwebel was no longer statutorily eligible to adjust status under the CSPA and USCIS denied her application."

The Court stated (at 103) that equitable estoppel was available in the United States against government in the “most serious of circumstances”, and required “a showing of affirmative misconduct by the government”, and that it had been applied in the immigration context to remedy “unintentional injustices”. The Court found the elements of estoppel to be proven: see 106. It held that:

Permitting the government to initiate rescission proceedings and subject Schwebel to removal would ‘‘sanction a manifest injustice occasioned by the [g]overnment’s own failures.’’

Australian law has not embraced the approach revealed by Schwebel. In Lam at [69], McHugh and Gummow JJ also examined the law in the US but concluded the US Supreme Court had not embraced the doctrine as much as some of the lower courts. Even if Schwebel reflects an increasing readiness at intermediate appellate court level to apply the doctrine, including in the immigration area, in the face of the tide of present Australian authorities, whether or not Australian law should adopt such an approach is a matter for the High Court.

The relevance of the IGOC Act

In my opinion, Mr McHugh never fell within the terms of the IGOC Act and the then responsible Minister was never his guardian under that Act. If, contrary to my conclusion, Mr McHugh did fall within the terms of that Act and the then responsible Minister was his guardian, it is my opinion there was no breach of any obligation under that Act to Mr McHugh. Reliance on the IGOC Act does not assist the case put on behalf of Mr McHugh.

The first question is whether, at any material time, the appellant fell within the terms of the IGOC Act. Section 6 of the IGOC Act relevantly provided:

"The Minister shall be the guardian of the person, and of the estate in Australia, of every immigrant child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as a guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of twenty-one years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens."

The phrase “immigrant child” was defined in s 4 to mean:

"a person under the age of 21 years who enters Australia as an immigrant, not being a person who enters Australia in the charge of, or for the purpose of living in Australia under the care of, a parent of that person, or a relative of that person not less than 21 years of age."

When Mr McHugh entered Australia aged around 7 years, with the couple who would adopt him about a year later, was he entering Australia either “in the charge of...a parent” or for the purpose of “living in Australia under the care of a parent”? If he was, then the IGOC Act did not apply to him.

While it is true that subsequent amendments to the IGOC Act have expressly picked up children who enter Australia with people who intend to adopt them, and have also picked up the definition of “parent” in the Family Law Act 1975 (Cth) (see ss 4 and 4AAA of the current IGOC Act), there is no basis to confine the meaning of “parent” in s 6 as it stood in 1975 to a biological parent, nor to a person with a formal adoption order in place.

As the Full Court later found in relation to the definition of “parent” in the Australian Citizenship Act 2007 (Cth), the ordinary meaning of the word “parent” is a question of fact, and

"[b]eing a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological....parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own....

See H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [129].

I accept the Minister’s submissions that the purpose of the IGOC Act is to provide for the care of unaccompanied minors who enter Australia: see Moore v Minister for Immigration [2007] FCAFC 134 at [52]; and see also the Second Reading Speech to the Immigration (Guardianship of Children) Bill 1946 (Cth), 31 July 1946, House of Representatives Hansard at 3369. This passage was extracted by the primary judge in his reasons in McHugh (No 2) at [63], but should be set out again:

"The bill also covers children who will be brought to Australia under the auspices of any governmental or non-governmental migration organizations when migration is resumed. The overriding responsibility of the Commonwealth in respect of all migrants, including the application of its social service legislation, applies in greater force perhaps to children. It is believed that the Commonwealth Government, in encouraging and financially assisting child migration by way of contributions towards passage money and payment of child endowment to organizations caring for the children, accepts a responsibility which does not end with the children’s arrival in Australia. It is, therefore, incumbent on the Commonwealth to see that child migrants are properly accommodated and cared for until they reach 21 years of age. The only way in which this can be achieved is by vesting in the Minister for Immigration an overriding legal guardianship in respect of all such children."

The text of s 6 and the definition of “immigrant child” conforms to this purpose. In the present circumstances, as I describe them in the next paragraph, it would be irrational to construe s 6 and the IGOC Act as a whole as intended to reach a person in the circumstances of the appellant, so that the Minister would become his guardian “to the exclusion of” Mr and Mrs McHugh.

Maryanne and Kevin McHugh were, on the evidence before the Court, already in a parental relationship with the appellant before they entered Australia. They took over his care in 1974 when his former caregiver, Mrs McHugh’s mother, passed away. He was then only 6 years old. Mrs McHugh’s mother had cared for the appellant since birth. In that sense, Maryanne McHugh was very much part of the appellant’s family. The appellant entered Australia, with Kevin McHugh’s surname, when he was 7 years old. The couple brought him to Australia, to start a life with him here. He was formally adopted just over 18 months later, although no doubt the adoption process commenced some considerable time prior to the order being made on 2 November 1976. At the time of bringing the appellant into Australia, Maryanne and Kevin McHugh were on the evidence people who had acknowledged the appellant as their own, and treated him as such. In my opinion these circumstances fell within either or both limbs of the exclusion from the definition of “immigrant child” extracted at [44] above.

I also accept the Minister’s submission that there was, at the time Mr McHugh entered Australia with Kevin and Maryanne McHugh, nothing to put the responsible Department on notice that the appellant could fall within the terms of s 6 of the IGOC Act. As the Minister submits, the appellant’s name on the incoming passenger card carried the surname of the couple who brought him to Australia and who would shortly thereafter commence the process to adopt him; he was listed as an Australian citizen and an intended place of residence was nominated – Southbrook Queensland. There would have been no reason for any officer to suppose the IGOC Act could or would apply to the appellant.

Second, even if contrary to my conclusions above, Mr McHugh fell within the terms of the IGOC Act on his entry to Australia, the duties of the responsible Minister under the IGOC Act were not relevantly breached. The core of the appellant’s contentions about breach of duty under the IGOC Act centres on the failure of the responsible Minister to secure Australian citizenship for Mr McHugh. Each of the courses of conduct the appellant suggested the Minister should have taken (see [16] of the appellant’s written submissions) involves, with respect, an artificial reconstruction of the circumstances, and the imposition of duties and functions on the Minister which are inconsistent with undisputed facts.

It appears to be common ground, although at times counsel for the appellant strayed beyond this proposition, that there was a period of about 21 months between the appellant’s arrival in Australia and his formal adoption by the McHughs. If the IGOC Act had an operation, it could only be during this period. It was not seriously suggested by counsel that once the appellant was legally adopted under Australian law by the McHughs, he somehow remained under the Minister’s guardianship under the IGOC Act.

It was during this 21 month period that the appellant’s counsel submitted there was a breach of the Minister’s guardianship obligations. It was submitted the Minister should have either applied for Australian citizenship for Mr McHugh, or secured him advice on how to apply for citizenship. It should be recalled at this stage Mr McHugh was 7 years old and living in Queensland with the McHughs, who may have also thought he was an Australian citizen, given how the passenger card was filled out.

Even if the Minister was, contrary to my conclusions, Mr McHugh’s guardian during this period, the indisputable facts are that he was living with the McHughs in Southbrook in Queensland, where they were tending to his daily and longer term needs, and intending to formally adopt him. He had suffered no personal injuries, he was not in any danger in terms of his care – he was, at least on the evidence before the Court, being brought up like any other young child in the Australian community. For that period of 21 months even if the Minister were in law his guardian it would have been entirely reasonable for the Minister to have seen the question of any future Australian citizenship as a matter between Mr McHugh and the two people who had brought him to Australia and were taking care of him.

Of course, with the benefit of hindsight, it would appear the McHughs, just like the appellant, laboured under a misapprehension about the appellant’s citizenship, and that misapprehension has had severe consequences for Mr McHugh. However, this aspect of the appellant’s argument requires the question to be asked: what, in the circumstances as they then appeared, would a reasonable Minister, as a guardian, have done in 1975 and 1976 about Mr McHugh not having been granted Australian citizenship before Mr McHugh was formally adopted? The answer is: nothing. Even if that were the position, it could not reasonably have been in the contemplation of the legal guardian under the IGOC Act that any steps needed to be taken.

In this aspect of the appellant’s arguments there were also some contentions, made only orally and apparently not before the primary judge, about Mr McHugh’s adoption being legally ineffective. They were not developed, have no foundation in fact or law and are directly inconsistent with the contentions put in McHugh where the appellant’s adoption was relied upon as one of the bases on which it was said he was an Australian citizen. They do not require further discussion.

Conclusion on the IGOC Act

While as I have found above, Mr McHugh genuinely believed he was a citizen, and at least two significant mistakes were made by Australian officials in treating him as an Australian citizen, and representing to him that he was able to be treated as one, nothing in the IGOC Act exacerbated or aggravated those circumstances, because it never applied to Mr McHugh. Even if, contrary to my conclusion, the IGOC Act did apply, the appellant’s contentions about the Minister breaching obligations under it by not securing citizenship for Mr McHugh have no merit. No additional equity arises which contributes to the strength of the circumstances suggesting an estoppel should be found to operate in relation to the Minister’s exercise of statutory power under s 501CA(4) more than 40 years after the IGOC Act is asserted to have been engaged in respect of Mr McHugh.

Conclusion:-

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be fixed by way of an agreed lump sum.

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