Was the Minister’s decision legally unreasonable because the appellant was not found to be a person whom the Minister considered a danger to Australia’s security within s 36(1C) of the Migration Act 1958 (Cth)?

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.