FEDERAL COURT OF AUSTRALIA

DOB18 v Minister for Home Affairs [2018] FCA 1523

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an amended originating application, the applicant seeks judicial review of a decision dated 15 February 2018. That decision, which cancelled the applicant’s visa, was made by the Minister for Home Affairs (Minister) under s 501BA of the Migration Act 1958 (Cth) (the Act). The decision was made 15 months after a decision by the Administrative Appeals Tribunal (AAT) under s 501CA of the Act to revoke an earlier decision by the Minister’s delegate under s 501(3A) of the Act to cancel the applicant’s visa. The Minister’s discretionary and personal power under s 501BA to, in effect, intervene and overturn an AAT decision (or a delegate’s decision) turns, in part, on the Minister’s satisfaction that it is in the “national interest” to cancel the person’s visa.

2    For the reasons that follow, the amended originating application will be dismissed, with costs.

Background matters summarised

3    The applicant is a national of [redacted] and is 39 years old. He has lived in Australia since 2000, having arrived here when he was aged 21. In 2004, he applied for a protection visa and claimed that he would be persecuted in his home country based on his homosexuality. On 16 November 2006, he was granted a Class XA subclass 785 temporary protection visa, due to his stated homosexuality. In November 2009, this visa was replaced by a Class CD subclass 851 Resolution of Status visa. It was this visa which the Minister cancelled on 15 February 2018.

4    On 27 April 2016, the applicant’s then visa was mandatorily cancelled by the Minister’s delegate acting under s 501(3A) of the Act after the applicant was convicted in the District Court of New South Wales of “supply prohibited drug greater than indictable quantity (not cannabis)” and sentenced to imprisonment for two years and eight months. Another Ministerial delegate subsequently declined to revoke that cancellation decision under s 501CA(4). The non-revocation decision was appealed to the AAT which, on 24 November 2016, set aside the delegate’s decision and ordered that the visa cancellation decision be revoked.

5    In light of the AAT’s decision, the applicant was released from immigration detention. As noted above, it was fifteen months later (on 15 February 2018) that the Minister made his decision under s 501BA to cancel the applicant’s visa. It took another six weeks for the Department to notify the applicant of the Minister’s decision. These delays are unexplained.

Relevant statutory provisions

6    Section 501BA provides:

501BA    Cancellation of visa—setting aside and substitution of non adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister- natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (2), see section 501G.

7    The applicant does not dispute the Minister’s finding that he did not pass the character test having regard to the combined effect of ss 501(6)(a) and 501(7)(c). This proceeding relates to the applicant’s claims that the Minister fell into jurisdictional error in concluding that cancellation of his visa is in the national interest as well as in the Minister’s reasoning with respect to Australia’s non-refoulement obligations.

The Minister’s statement of reasons

8    As required by s 501G, the Minister provided the applicant with a written notice which set out the reasons for his decision. The statement of reasons is 12 pages long. It explains in some detail why the Minister was satisfied that the applicant did not pass the character test and why the Minister was satisfied that it was in the national interest to cancel the applicant’s visa. The statement also contains the Minister’s reasons why he did not exercise his residual discretion under s 501BA not to cancel the visa even though the Minister was satisfied both that the applicant did not pass the character test and that it was in the national interest to cancel his visa. The matters addressed by the Minister as being relevant to this residual discretion included the risk which the applicant posed to the Australian community through reoffending; the best interests of the applicant’s three children; the expectations of the Australian community; international non-refoulement obligations; the applicant’s ties to Australia and the extent of impediments if he were returned to [redacted].

9    It is desirable to set out those parts of the Minister’s statement of reasons which figure prominently in the judicial review challenge. Those parts relate to the Minister’s consideration of the “national interest” and his reasoning regarding Australia’s non-refoulement obligations (omitting footnotes):

NATIONAL INTEREST

15.    I then considered the question of whether cancellation of [the applicant’s] visa is in the national interest, recognising that this question is separate and distinct from the question of whether or not [the applicant] passes the character test because of the operation of, in this case, paragraph 501(6)(a) of the Act on the basis of paragraph 501(7)(c) of the Act.

16.    'National interest' is not defined for the purposes of s501BA of the Act. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.

17.    In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:

The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest.

18.    I find that matters of national interest could include, amongst other things, the seriousness of [the applicant’s] criminal conduct, having regard to the circumstances and nature of the conduct and the dispositions imposed by the courts. I note [the applicant’s] criminal history includes the supply of prohibited drugs greater than an indictable quantity, which I consider to be serious.

19.    On 11 July 2014, [the applicant] was convicted in the District Court of New South Wales of the following offences, for which he was sentenced, concurrently, as shown:

•    Supply prohibited drug greater than indictable quantity (not cannabis) (cocaine) – two years and eight months' imprisonment

•    Supply prohibited drug greater than indictable quantity (not cannabis) (ketamine) – 11 months' imprisonment.

Three further offences were taken into account on Form 1 (in sentencing on the above supply cocaine charge), namely possess prohibited drug (methamphetamine), deal with property suspected of proceeds of crime ($57,000) and restricted substance sold by non-wholesaler.

20.    According to the sentencing remarks, the cocaine weighed 27.8 grams and had a purity of 48.8 per cent. The ketamine weighed 30.1 grams and had a purity of 76 per cent. In addition, the methamphetamine weighed 3.5 grams and had a purity of 82.5 per cent.

21.    l have had regard to the 2014 sentencing Judge's statements that [the applicant] had been involved in 'substantial drug trafficking' and both the amount of money and the quantities of drugs reflected a financial return to him 'much greater' than a person selling for their personal use. The Judge also stated that [the applicant] was ‘no street-level user/dealer; he was well above that in the hierarchy of drug trafficking’. I also note the Judge's remarks that [the applicant] had offended while on a good behaviour bond for the same type of offences.

22.    I have taken into account that the Judge found [the applicant’s] offending to be towards the lower end of the mid-range of objective seriousness.

23.    I accept these remarks are reflective of the seriousness with which the Judge carrying out the sentencing task viewed [the applicant’s] offending. I find [the applicant’s] offending to be serious.

24.    I note [the applicant’s] criminal history includes further convictions for drug offences as well as dishonesty and driving offences, being possess prohibited drug (2011, 2007, 2006), possess/attempt to prescribed restricted substance (2007), supply a prohibited drug (2006), goods in personal custody suspected being stolen (not motor vehicle) (2011, 2006), exceed speed (2007) and never licensed person drive vehicle on road (2005). Sentences varied from· bonds of up to two years, a community service order, fines of up to $1500 and licence disqualification.

25.    I also note the AAT decision record of 24 November 2016 stated [the applicant] had speeding offences recorded in 2013 and was given a good behaviour bond in relation to his licence on 19 November 2013.

26.    I find [the applicant’s] recidivism contributes to the seriousness of his conduct, particularly as he has been given multiple opportunities by the court to correct his behaviour, including non-custodial sentences as early as 2006, yet he has continued to reoffend. I also find there to be an upward trend of seriousness in relation [the applicant’s] offending, with his most recent offences pertaining to an involvement with drugs beyond that of personal use, as noted by the court from the amount of money and quantity of drugs involved.

27.    I find that the sentences of imprisonment [the applicant] received are a further indication of the seriousness of his offending. I note that in considering what disposition to impose, the sentencing Judge on 11 July 2014 stated the ‘only appropriate sentences are full-time custody’. Dispositions involving incarceration are the last resort in the sentencing hierarchy and I have considered the court, through its imposition in 2014 of a sentence of two years and eight months' imprisonment (taking into account Form 1 offences) and a sentence of eleven months' imprisonment, viewed his offending as serious.

28.    In considering the national interest, I note [the applicant’s] criminal history has involved the supply of illicit drugs to the community, included multiple instances of offending of a like nature and escalated in seriousness over time. Within this context I note and endorse the AAT's statements on 24 November 2016 that drug trafficking ‘is widely condemned’ and drug misuse has a ‘corrosive effect on drug users, their families, police, health services, and the wider community’. I also note [the applicant’s] offending has resulted in court dispositions of imprisonment of up to two years and eight months. I therefore find [the applicant’s] conduct to be of such seriousness as to found a satisfaction it is in the national interest to cancel his visa.

…

International non-refoulement obligations

75.    [The applicant] submits that he would face harm if returned to [redacted] and that he urgently seeks a 'non refoulement order.' I note also [the applicant’s] visa history, including grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality.

76.    In his letter of 29 April 2016, [the applicant] stated he believed the view towards homosexuality in [redacted] was worse than in 2006 and his life would be in ‘very real danger’ if he returned there. [The applicant] further stated he would be targeted by Islamic extremists in [redacted]. [The applicant] attached two media articles to his letter to demonstrate relevant circumstances in [redacted], including a Sydney Morning Herald article dated [redacted] that reported on the fatal stabbing of the editor of [redacted] first LGBT magazine.

77.    [The applicant] raised similar fears in his personal details form dated 22 August 2014, noting he would be ‘killed (stoned to death) without a doubt’ if returned.

78.    The AAT, in its decision record of 24 November 2016, did not make a finding regarding [the applicant] and Australia's non-refoulement obligations. I note the AAT stated it was likely [the applicant] would face discrimination and persecution in [redacted] if his sexual orientation became known and suppressing his sexuality to avoid persecution would be an 'onerous burden'.

79.    I note that the effect of s501E(2) of the Act is that [the applicant] would not be prevented from lodging a protection visa application following a decision by me to cancel his current visa.

80.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

81.    My conclusion in this respect is based on my awareness that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. Furthermore, to reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

82.    I have also considered [the applicant’s] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].

The alleged jurisdictional errors

10    In his amended originating application, the applicant raised five alleged jurisdictional errors, each of which may be summarised as follows. First, the Minister’s decision was based on an incorrect understanding of the law, being that non-refoulement obligations would, necessarily as a matter of law, be fully considered in assessing any future visa application by the applicant (ground 1).

11    Secondly, the applicant claimed that the Minister’s satisfaction under s 501BA(2)(b) was arrived at on another incorrect understanding of the law, namely the Minister’s assumption that, if the applicant made a valid protection visa application, the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application. The incorrect understanding of the law was said to relate to the Minister’s view that, if non-refoulement obligations were assessed as being owed to the applicant, he would not be removed from Australia in breach of those obligations. The applicant contended that there was a real and significant likelihood that any visa application made by him would fail and that consequently, by operation of ss 197C and 198 of the Act, he would be removed from Australia irrespective of the outcome of any non-refoulement assessment (ground 2).

12    Thirdly, the applicant contended that the Minister’s satisfaction that cancellation was in the national interest was a decision which was not reached reasonably, citing Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 (Madafferi). The applicant alleged that the unreasonableness stemmed from the fact that it was unreasonable for the Minister to be satisfied that cancellation of the visa was in the national interest notwithstanding that there was a real and substantial risk that the applicant would be removed from Australia in breach of Australia’s non-refoulement obligations and/or government policy (ground 3).

13    Fourthly, the applicant claimed that the Minister had failed to take into account a relevant consideration. That consideration was said to be the fact that, in 2006 when the applicant was granted a protection visa, the then Minister was satisfied that it was in the national interest to do so, but the current Minister did not take account of that different and earlier view of the national interest when he made his decision on 15 February 2018 (ground 4).

14    Finally, the applicant claimed that the decision to cancel his visa was legally unreasonable in that the Minister concluded that there remained an ongoing risk and possibility of the applicant reoffending and that he posed an unacceptable risk to the Australian community, when those conclusions did not flow logically from other findings made by the Minister, citing Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 (Ogbonna) at [13] and Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 (Muggeridge) at [35] per Charlesworth J (with whom Flick and Perry JJ agreed).

Disposition of the amended originating application

15    For the following reasons, I am not satisfied that the applicant has established any of the five alleged jurisdictional errors. It is convenient to deal with each of those alleged errors in turn.

(a) Ground 1

16    This ground relies primarily on the majority judgment of the Full Court (Bromberg and Mortimer JJ) in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16). Justice Davies dissented. The High Court subsequently refused the Minister’s application for special leave to appeal.

17    In BCR16, which involved a challenge to a decision of the Assistant Minister not to revoke a mandatory visa cancellation under s 501CA(4) of the Act, the majority found that there were two misunderstandings revealed by the Assistant Minister’s reasons in that case regarding non-refoulement obligations. The first was a misunderstanding as to the future course of decision-making, namely that non-refoulement obligations would necessarily fall to be considered in the course of any future application for a protection visa (at [69]). The second misunderstanding was that the harm raised by the applicant as a “reason” for revocation in that case was necessarily within that protected by Australia’s international non-refoulement obligations when there were other reasons why it might not (at [72]).

18    In Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 (BHA17), a differently constituted Full Court rejected the Minister’s submission that, correctly read, the first misunderstanding identified by the majority in BCR16 was an assumption that non-refoulement obligations were likely to be considered in a future protection visa application. Rather, the Full Court said that the misunderstanding took the form of an assumption that non-refoulement obligations would necessarily be considered in such a future application (see BHA17 at [73] per Robertson, Moshinsky and Bromwich JJ).

19    In BHA17, the Full Court also addressed the “second misunderstanding” identified by the majority in BCR16. It is to be recalled that this second misunderstanding related to the fact that the Minister treated the appellant’s claims of being at risk of harm if he were returned to his country of origin as raising the question of whether non-refoulement obligations were owed to the appellant. This misunderstanding was in error because the harm which the appellant said that he feared did not necessarily fall within the framework of Australia’s international non-refoulement obligations, nor did the appellant there describe the harm he feared by reference to the concept of “non-refoulement” (BCR16 at [11] and [72] and BHA17 at [80]).

20    In BHA17, although the Full Court did not need to determine the matter, their Honours said at [80] that there was “some force” in the Minister’s submissions in that appeal which were to the effect that a distinction had to be drawn between a case where the affected person gives as a reason for revoking the original decision the person’s fear of persecution as part of the person’s refugee claims, as opposed to a case such as Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Goundar). In Goundar, the applicant’s claim to fear harm if returned to his country of origin had a “private quality” about it and was therefore not likely to engage the Refugees Convention or s 36(2)(a) of the Act. The applicant’s specification in that case of the kind of harm he feared was also found to be insufficient to give rise to a claim for complementary protection under s 36(2)(aa) (see generally BHA17 at [79]).

21    Assuming, without deciding, that the majority’s view in BCR16 relating to the “first misunderstanding” applies in principle to a Ministerial decision under s 501BA, there are other reasons why the majority’s reasoning, when applied to the particular circumstances here, does not give rise to a jurisdictional error of a kind raised by ground 1.

22    First, the relevant passages in the Minister’s statement of reasons here are expressed in significantly different terms from those in either BCR16 or BHA17. In contrast with both those cases, the Minister went further than merely to note that his Department’s practice in processing protection visa applications was to consider the application of protection-specific criteria before proceeding to any consideration of other criteria, including character-related criteria. The Minister also made express reference to Direction 75 (which is entitled “Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)”). Direction 75, which commenced in September 2017, was made under s 499 of the Act. Direction 75 was not in place when BCR16 was decided, and it commenced after the events which gave rise to the decision at first instance in the BHA17 litigation. Direction 75 relevantly requires decision-makers who are considering an application for a protection visa to first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, including character criteria.

23    Direction 75 does not bind the Minister, but it binds other decision-makers, including Ministerial delegates. I accept the Minister’s submission that the making of Direction 75 caused the Minister to express his confidence in [81] of the Statement of Reasons that the applicant would have the opportunity to have his protection claims fully assessed in the course of an application for a protection visa. This is because Direction 75 is legally binding on, inter alia, delegates and reinforces the Department’s practice in processing protection visa applications to consider the application of the protection-specific criteria before proceeding to consider other criteria, such as character-related criteria. As noted above, however, Direction 75 does not bind the Minister.

24    Secondly, and not without some hesitation, I accept the Minister’s submission that the fact that Direction 75 does not bind him personally has no material consequence in this proceeding. That is so for the following reasons.

(i) The proper construction of the Minister’s statement of reasons

25    It is to be noted that, in [80] of his statement of reasons, the Minister said that it was unnecessary for the purposes of his s 501BA decision to determine whether non-refoulement obligations were owed to the applicant as the applicant could apply for a protection visa and, in that event, the issue of any non-refoulement obligations “would be fully considered in the course of processing the application”. The language “would be” is clear and unambiguous. It implicitly contemplates the possibility that a future protection visa application might be considered and determined by the Department or by the Minister personally.

26    The applicant seized on the fact that the immediately succeeding paragraph ([81] of the statement of reasons) is directed exclusively to the Minister’s evaluation of what would happen if a future protection visa application were considered and determined by his Department. It is in that context that reference is made by the Minister to his awareness of the Department’s practice of considering protection-specific criteria before turning to criteria such as character-related criteria, and that this practice was reinforced by the legally binding nature of Direction 75. The applicant emphasised that the Minister made no specific reference in his statement of reasons to the possibility that he might personally consider and determine any protection visa application by the applicant and that the Minister was not legally bound to act in accordance with Direction 75.

27    It is true that the statement of reasons is silent on the possibility that the Minister might personally be involved in determining any protection visa application by the applicant and that, if he were, he is not bound by Direction 75. It is equally true that the Minister does not state that he will not become personally involved in the consideration of any such visa application. I do not consider, however, that these omissions from the Minister’s statement of reasons reveal jurisdictional error.

28    On a fair reading of the Minister’s statement of reasons (consistently with the approach required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), the Minister appears to have contemplated that it was likely that any such application would be considered by the Department and not himself personally.

29    It may reasonably be inferred, however, that the Minister was well aware that s 65 of the Act also empowered him personally to make a decision in respect of any valid application for a protection visa (see s 46) as required by s 47 of the Act. If that occurred, the Minister would be obliged, in the context of making a determination under s 65 of the Act, to consider the relevance, if any, of Australia’s non-refoulement obligations in respect of the applicant. This is what the Minister apparently had in mind when he made the unambiguous statement in [80] that “the existence of otherwise of non-refoulement obligations would be fully considered in the course of processing” any future protection visa application (emphasis added). Arguably, such an unequivocal statement could have implications for procedural fairness requirements in the event that the statement was not honoured in the future and the applicant was not given a prior opportunity to comment upon the proposal not to honour the statement (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [45]-[48] per Kiefel, Bell and Keane JJ).

30    It may also reasonably be inferred that the current Minister was aware of the unequivocal statement made by his predecessor when s 197C was inserted in the Act in 2014, that “asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations…”.

(ii) The importance of the different stages of decision-making under the Act

31    I do not consider that, in the context of this proceeding, the Minister was obliged to take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the Minister was engaged. The Minister was explaining why he had exercised his power under s 501BA, which is necessarily an earlier stage in a potentially broader decision-making process which might see the applicant lodge another application for a protection visa as he would be entitled to do having regard to s 501E(2) of the Act. If the applicant makes a valid visa application as defined in s 46 of the Act, the Minister (or a delegate) is statutorily obliged to either grant or refuse the visa under s 65. If it transpires that the applicant makes a valid application and it is refused by the Minister personally and the Minister fails to have due regard to Australia’s non-refoulement obligations, the applicant will be entitled to challenge that decision by way of judicial review (as to which see, by way of analogy, NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944). As matters stand at present, however, I do not accept the applicant’s submission that the Minister’s statement of reasons in respect of his decision under s 501BA displays jurisdictional error as alleged by ground 1.

(iii) Other relevant first instance decisions

32    The need to appreciate the different stages of decision-making under the Act is at the heart of a trio of recent first instance decisions of the Court, upon which the Minister relied.

33    Those decisions are Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) per Flick J; Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) per Logan J and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J. Each of those decisions involved challenges to decisions made under s 501CA(4) to not revoke a mandatory visa cancellation decision. I consider, however, that the reasoning is also relevant to the process of decision-making under s 501BA.

34    In Ali, in response to a similar submission to that which the applicant advances here, Flick J emphasised that the relevant decision-making process under s 501CA(4) required a state of satisfaction to be formed, not as to whether a person satisfied the criteria for the grant of a visa under s 36(2), but rather a state of satisfaction as to whether there was “another reason” why the original decision should be revoked (see Ali at [28]). His Honour then added at [31] that, if the applicant were to apply in the future for a visa (including a protection visa), and it was considered by the Minister personally, then the Minister would be confronted with the need, at that time, to consider whether the application should again be refused on the basis of non-satisfaction of the character test and/or whether the applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia. His Honour then concluded at [33]-[34]:

33.    But these are all decision to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

34.    Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:

•    the sequence in which claims would be resolved in accordance with Direction No 75.

Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:

•    the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.

35    Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]. As the judgment in Turay was published in Court on the day of the hearing of this matter, the parties were given leave to file brief post-hearing supplementary submissions on its relevance to this proceeding. Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making, such as that presented by the Minister’s decision here under s 501BA.

(b) Ground 2

36    This ground is closely related to ground 1, save that the emphasis is upon the alleged misunderstanding by the Minister when he stated in [80] of his statement of reasons that non-refoulement obligations would be fully considered in the course of processing the application. The applicant contended that there was a real and substantial risk that if he submitted a valid protection visa application, it would fail, largely because of the ineligibility criteria set out in provisions such as s 36(1C)(b) and (2C)(b)(ii) of the Act as well as the requirement that the decision-maker be satisfied that grant of the visa is in the national interest (referring to reg 785.227 in Sch 2 of the Migration Regulations 1994 (Cth)). The applicant emphasised that there was no material before the Court to indicate that the Minister would exercise his non-compellable powers under s 195A or 197AB of the Act and that the legal effect of ss 198 and 197C was that the applicant would have to be removed from Australia if he were refused a visa, citing DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 at [26]-[27] per North ACJ.

37    I reject these submissions for similar reasons to those given above for rejecting ground 1. It is premature to speculate whether or not full consideration will be given to Australia’s non-refoulement obligations in respect of any future visa application by the applicant.

(c) Ground 3

38    This ground turns on whether or not the Minister’s stated satisfaction that it was in the national interest to cancel the applicant’s visa was a satisfaction which was “obtained reasonably”, to use the phrase from Madafferi at [89] upon which the applicant relied (see also Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [167] per Gummow and Hayne JJ).

39    It was common ground that the phrase “national interest” has a very broad meaning. The applicant accepted that the Minister “is left largely unrestrained in determining the factors that are relevant to the determination of whether the cancellation of a visa is in the national interest”. It is unnecessary for the purposes of this proceeding to determine whether there is any relevant difference between the phrases “national interest” and the “public interest”. Both have to be given a wide meaning and operation but that is not to say that their meanings are identical.

40    Ground 3 suffers from the same fundamental flaw as grounds 1 and 2. It is predicated on speculation as to what might or might not happen in the future, including the possibility of the applicant being removed from Australia under s 198 in breach of Australia’s non-refoulement obligation as is apparently permitted by s 197C of the Act. The difficulty for the argument, however, is that it is simply not known at this point in time what might happen under other decision-making processes which would be triggered if the applicant applies for a protection visa.

41    Of course it must be accepted that, in exercising his personal power under s 501BA, the Minister is obliged to have regard to the legal consequences of his decision, consistently with authorities such as NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (NBMZ). In that case, the Full Court held that in refusing to grant the applicant a protection visa under s 501 of the Act, the Minister failed to take into account the legal consequences of that decision. Those legal consequences were that, as an unlawful non-citizen with no visa prospects, the applicant was subject to mandatory detention and removal from Australia as soon as reasonably practical, as required by ss 189 and 198 of the Act. Since there was no country to which the applicant could be removed, he was liable to be detained indefinitely, but this legal consequence had not been taken into account by the Minister.

42    The position is different here, largely because, unlike the position in NBMZ, the applicant has not reached the end-point of the decision-making process under the Act. As has been emphasised, it is unclear at present what, if any, visa application the applicant might now make and what decisions will be made in relation to that application or flow from its outcome.

(d) Ground 4

43    This ground is directed to the alleged failure of the Minister to take into account a previous Minister’s view back in 2006 that it was in the national interest to grant the applicant a protection visa. Before explaining why I reject this contention, it is appropriate to note one peculiarity about the matter. It relates to the fact that the decision in 2006 to grant the applicant a protection visa was made by a Ministerial delegate, and not the Minister. In the delegate’s decision record dated 16 November 2006, the delegate set out her state of satisfaction as to various relevant criteria for the grant of such a visa. Curiously, she stated that she was satisfied that the applicant has “satisfied the Minister that a grant of a visa is in the national interest”. Counsel for the Minister was unable to explain why the delegate took into account the Minister’s satisfaction as to the national interest issue when the decision was made, not by the Minister, but by the delegate herself. In any event, neither party suggested that this curiosity gave rise to any legal error.

44    The reasons why ground 4 must be rejected are as follows. First, the applicant correctly accepted that for this ground to succeed he needed to establish that the favourable assessment of the national interest in November 2006 was a mandatory relevant consideration for the Minister to take into account in February 2018. Assuming, without deciding, that the concept of the “national interest” in s 501BA admits of any mandatory relevant consideration, I am not persuaded that the view taken in 2006 of the national interest qualifies as a mandatory relevant consideration in the exercise of the s 501BA power in February 2018. That is because, having regard to the subject matter, scope and purpose of s 501BA and the Act more generally, it is difficult to see how a view which was arrived at 12 years previously that it was in the national interest to grant the applicant a protection visa is a mandatory relevant consideration in assessing for the purposes of s 501BA that it was in the national interest to cancel the applicant’s visa. That is particularly so where the relevant surrounding facts and circumstances have changed, including perhaps most importantly, the fact of the applicant’s conviction in 2014.

45    Secondly, and related to the first matter, the question whether or not to cancel a visa under s 501BA turns in part on whether the Minister is satisfied that it is in the national interest to do so, which satisfaction needs to be arrived at by reference to the circumstances which prevail at that time. That is not to say that previous matters are irrelevant but the weight to be given to them is largely a matter for the Minister’s evaluation.

46    Thirdly, it is evident from the Minister’s statement of reasons that he was well aware of the fact that the applicant had been granted a protection visa in 2006. There is an express reference to that matter in [75] of the Minister’s statement of reasons. It is reasonable to infer that the Minister would have appreciated that, for such a visa to be granted to the applicant, the decision-maker must have been satisfied that it was in the “national interest” to do so. The weight to be given to this historical matter was one for the Minister to determine, subject to the overarching requirement of reasonableness.

(e) Ground 5

47    This ground raised for determination whether it was illogical or irrational of the Minister to conclude that there was an ongoing risk, albeit low, of the applicant reoffending and that he posed an unacceptable risk to the Australian community, having regard to other findings made by the Minister. Those other findings were identified by the applicant as including the following matters:

(a)    the Minister’s acceptance that the applicant’s use of drugs as a means of dealing with issues stemming from his homosexuality constituted a causal factor in the offending, but there was expert evidence that the principal trigger for the applicant’s substance abuse was no longer present as he had addressed the issues surrounding his sexuality and family acceptance;

(b)    the Minister’s reference to the AAT’s conclusion that the applicant’s arrest and incarceration in 2011 was the start of a process of rehabilitation and that the applicant had dealt with the issues that “triggered the bad behaviour in the first place;

(c)    the Minister’s acceptance that the applicant had not reoffended since being in the community after the AAT decision and that he had taken steps to rehabilitate himself in various ways;

(d)    the Minister’s acceptance that the applicant’s conduct in prison and immigration detention had been compliant and that he had engaged in activities to assist with his rehabilitation;

(e)    the Minister’s acceptance that the applicant had demonstrated “some remorse” and that remorse constitutes a protective favour in preventing him from reoffending;

(f)    the Minister’s reference to a report dated 8 October 2014 by NSW Corrective Services that the applicant did not present as someone who could pose an unacceptable risk to the community;

(g)    the Minister’s reference to various favourable personal references regarding the applicant; and

(h)    the Minister’s acceptance that the applicant had positive plans for his future and a possible offer for employment.

48    It is well settled that for “illogicality” or “irrationality” to give rise to jurisdictional error, a judicial review applicant is required to establish that the decision is one which no rational or logical decision-maker could have arrived at on the same evidence (see, for example, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] per Crennan and Bell JJ). Accordingly, the applicant needs to establish that no person performing the role of a Minister could have reached a state of satisfaction that it was in the national interest to cancel the applicant’s visa on the basis of the material which was before the Minister here.

49    The applicant’s list of findings or observations of the Minister which were in his favour are selective. The Minister’s conclusion that overall, there remained an ongoing low risk of the applicant reoffending, with consequential harm to the Australian community, was supported by other findings, including:

(a)    the applicant’s most recent drug offending was committed while he was on a good behaviour bond and that he had also committed traffic offences while on bail, which displayed a disregard for judicial orders;

(b)    the applicant reoffended multiple times despite being aware of the potential ramifications for his visa status;

(c)    the applicant admitted to the AAT that he had misled a psychologist in 2007 about his drug use by stating that he was not misusing drugs at the time, which caused the Minister to have doubts concerning the veracity of his statements about his abstinence from drugs;

(d)    the Minister found that the applicant demonstrated further disregard for Australian laws by not accurately completing his incoming passenger cards in 2009 and 2010 because he did not disclose his criminal convictions;

(e)    the Minister referred to the sentencing judge’s remarks on 11 July 2014 that the applicant had a “poor record” for a person who is at risk of deportation; and

(f)    despite the applicant’s participation in Court-directed treatment programs in 2007 and 2008 and a psychologist report that concluded that there were no indications that the applicant was using drugs, the applicant continued to commit drug offences.

50    I do not consider that the applicant is assisted by decisions such as Muggeridge and Ogbonna. In Muggeridge, the Minister’s decision was held to be affected by jurisdictional error not because the Minister considered that a person previously convicted of a criminal offence may reoffend, but rather that the Minister did not, in fact, reason in that way in circumstances where he had expressly concluded that the appellant had rehabilitated and had not committed any offences for some 19 years. In Ogbonna, the Minister determined that there was a likelihood of the applicant there re-offending as opposed to the finding made by the Minister here that there was an ongoing risk, albeit low, of the applicant reoffending. As the Minister pointed out, the difference between the two findings is subtle, but it does exist, as Thawley J recognised in Ogbonna at [22]-[23].

51    Moreover, the error in Ogbonna as identified by Thawley J at [47] was that the Minister had speculated as to what might occur in the future in a manner which was unsupported by probative material. Moreover, the Minister’s conclusion of a likelihood of reoffending was “logically disconnected from the favourable findings as to why the possibility or risk of recidivism, perhaps present in every case, was low”. For reasons which have already been explained in [49] above), the Minister’s assessment of the risk of the applicant reoffending was not unsupported by probative material. Nor is there any logical disconnection of the kind found in Ogbonna.

52    Having regard to all these matters, I consider that the Minister’s decision was well within his “decisional freedom” and is not illogical, irrational or unreasonable in the legal sense.

Conclusion

53    For these reasons, the amended originating application will be dismissed, with costs.

Associate:

Dated:    17 October 2018