Is the Federal Court seized with jurisdiction to review the Minister’s refusal to afford the appellant 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)?

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.