FEDERAL COURT OF AUSTRALIA

SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT

1    The Minister refused the appellant’s application for a bridging visa on character grounds. The appellant unsuccessfully sought judicial review of that decision. His originating application was rejected by the primary judge on 1 September 2015. The appellant now appeals against that judgment. In his appeal, the appellant repeats some of the grounds which were rejected by the primary judge. He also seeks to raise some additional grounds which were not raised below, including one ground which was abandoned below by his legal representative. For the reasons which follow, the appeal will be dismissed.

Summary of background facts

2    The appellant is a 43 year old Nigerian citizen who has a serious criminal record. He arrived in Australia on 18 September 2000, using a fraudulent passport. Shortly thereafter, he applied for a Class XA protection visa, which was refused. There ensued a series of challenges to that decision in both the Refugee Review Tribunal and the Courts, the details of which need not be set out.

3    In 2003, the appellant was charged with the offence of attempt to possess a prohibited import, involving a trafficable quantity of cocaine with a street value of approximately $880,000. He was placed on conditional bail. On 22 August 2004, the appellant breached his bail conditions and fled Australia on a stolen passport. Shortly thereafter, he was extradited from the United Kingdom and returned to Australia where he was taken into custody. He pleaded not guilty to the drug offence but was convicted following a trial in the District Court of New South Wales. He was also convicted of breaching his bail conditions, to which he had pleaded guilty. On 20 September 2006, the appellant was sentenced to twelve years imprisonment for the drug offence, with a non-parole period of eight years, and two years imprisonment with a non-parole period of one year and four months for his bail offence.

4    While the appellant was in custody he made a second application for a protection visa. That application was also refused. There ensued another series of challenges to that decision in the Refugee Review Tribunal and in the Courts, which culminated in the High Court refusing him special leave to appeal. It is unnecessary to describe the details of those proceedings.

5    On 26 November 2013, the appellant lodged an application for a Bridging E (Class WE) visa (bridging visa). He stated that he intended to apply for partner visas once he was released from detention. He told the Department that his purpose in applying for the visa was so that he could be with his wife (an Australian citizen, whom he had recently married while in detention at Villawood Immigration Detention Centre). Among other matters, the appellant also told the Department that he wanted to spend more time with his ten year old son from a previous relationship.

6    By letter dated 28 November 2013, a Departmental officer wrote to the appellant and notified him of an intention to consider refusing his application for a bridging visa. The appellant was told that the decision on his application could be made by the Minister personally or by the Minister’s delegate. He was provided with various documents upon which he was invited to comment. On 19 December 2013, a Departmental officer wrote to the appellant again and provided him with additional documents which were relevant to the decision on his bridging visa application. On 13 May 2014, the appellant was provided with a further opportunity to provide additional comments or documentation in relation to his bridging visa application and in relation to the decision on that application.

7    The appellant responded to these various invitations and, through his solicitor, made submissions in a letter dated 6 January 2014 and in emails dated 26 and 27 May 2014. In broad terms, the submissions were to the effect that the appellant was rehabilitated, and that he had improperly used passports in the past because of fears for his own life. It was submitted that it was in the interests of his wife and son who lived in Australia that he remain here. A range of documentary evidence was also provided in support of these submissions, including letters from his wife, her father and a friend, as well as medical evidence relating to his wife’s anxiety and depression concerning the appellant’s possible removal from Australia.

8    The Minister elected to consider the appellant’s case personally. On 12 February 2014, the appellant’s bridging visa application was refused by the Minister on character grounds. This decision was subsequently set aside by consent in circumstances where the Minister acknowledged that his decision was affected by jurisdictional error, namely that the Minister had misunderstood that the appellant was seeking a visa for the purpose of pursuing one of his judicial review proceedings, rather than on the basis that the appellant was intending to apply for substantive visas (the partner visas) in order to remain in Australia.

9    The Minister reconsidered the appellant’s bridging visa application. On 6 November 2014, it was again refused. The Minister provided a detailed statement of reasons for this decision. This decision was the subject of the judicial review proceeding below.

10    In broad terms, the Minister’s statement may be summarised as follows:

    the Minister said that he had considered all the evidence which had been provided to him by or on behalf of the appellant;

    having concluded that the appellant did not satisfy the character test, the Minister then stated that he had turned his mind to whether or not he should exercise his discretion under s 501(1) of the Migration Act 1958 (Cth) (the Act);

    the Minister considered the appellant’s criminal conduct and noted that the twelve year prison sentence was a reflection of the seriousness of his drug offence. The Minister expressed agreement with the sentencing judge’s comments about the “destructive impact” of the supply of drugs such as cocaine. The Minister added that further similar offences by the appellant would contribute significantly to the supply of illicit drugs in Australia and would add proportionately to the serious problems that such supply creates for the Australian community;

    account was taken of the steps taken by the appellant to further his education and assist others while in prison, but the Minister reasoned that other relevant countervailing factors included the appellant’s preparedness to commit a major drug offence for financial reasons; that the appellant’s rehabilitation had not yet been tested in the community; and the doubt attaching to the appellant’s reliability in abiding by his commitments in view of his previous use of false travel documents, his breach of bail while awaiting trial and his use of fabricated claims and evidence in seeking a protection visa;

    the Minister accepted that it would be in the best interests of the appellant’s son that the visa application not be refused and that a refusal of the visa would not affect pending judicial review proceedings with respect to the refusal of the appellant’s second application for a protection visa; and

    the Minister also took into account the appellant’s wife’s concerns about her desire to have her husband remain with her in Australia and for her not to have to move her family to Nigeria.

11    The Minister ultimately concluded that he could not rule out the possibility of the appellant further offending and that he posed an unacceptable risk of harm to the Australian community which outweighed the factors in favour of granting the bridging visa. Accordingly, the appellant’s bridging visa application was refused under s 501(1) of the Act.

The proceedings before the primary judge

12    The appellant’s judicial review application before the primary judge raised the following two grounds:

(a)    the Minister failed to give consideration to the appellant’s stated intention to apply for partner visas to remain in Australia if he were granted a bridging visa; and

(b)    the Minister’s decision was affected by apprehended bias.

13    The second ground of judicial review was withdrawn by the appellant’s solicitor. The first ground was sought to be made good by arguing that the Minister failed to consider that the appellant had been released on parole and that the Minister had also failed to consider that the grant of the bridging visa would mean that the appellant would have his wife’s support, an opportunity to establish a relationship with his son and to become rehabilitated with his wife’s assistance.

14    The primary judge rejected these contentions for reasons which may be summarised as follows. First, her Honour held that the Minister was “obviously aware” of the fact that the appellant was on parole even though he made no direct mention of that in his statement of reasons. However, that fact was mentioned in the Departmental brief which was before the Minister and was also referred to in the appellant’s solicitor’s submissions. After noting the nature of the obligation to give written reasons under s 25D of the Acts Interpretation Act 1901 (Cth) (the AIA), her Honour concluded at [28] that, in circumstances where the Minister “was plainly alive to the fact that the applicant was on parole, there is no reason to conclude that he failed to take it into account”. Instead, her Honour concluded that the absence of any express reference to this fact in the statement of reasons “should be taken as an indication that he did not regard it as material or, I would add, that it was not evidence or material upon which his findings were based”.

15    Secondly, her Honour rejected the appellant’s contention that the Minister had failed to consider that, if his application for a bridging visa was successful, he intended to apply for partner visas. This was because the Minister had noted at [21] of his statement of reasons that the appellant would still be able to apply for a partner visa if his bridging visa application was refused and the Minister had added this would not prevent him from making such an application from outside Australia. In addition, her Honour pointed to the Minister’s statement at [13] of his statement of reasons that he had taken into account the material provided by or on behalf of the appellant and there was no reason to disbelieve the Minister.

16    Thirdly, her Honour did not doubt that the Minister took into account the long-term interests of both the appellant’s wife and his son, as was evident from various paragraphs in the Minister’s statement of reasons which were identified by her Honour.

17    Fourthly, her Honour stated that even if, contrary to her findings above, the Minister had erred in the respects alleged, she considered that such errors would not be jurisdictional. She explained that this was because the Minister’s discretion under s 501(1) is very broad. Her Honour referred to what Allsop CJ and her Honour had stated in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at [6]:

The discretion under s 501(1) of the Act is unfettered in its terms, the usual consequence of which can be seen in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [71] and [74]. The Minister is not bound by “Direction No 55 - Visa refusal and cancellation under s 501” issued under s 499(1) of the Act, which his delegates must follow. Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39; and Huynh at [71]. In the case of an applicant for a protection visa one of those considerations is the statutory (that is, legal) consequences of visa refusal.

18    Her Honour also made reference to the Full Court’s decision in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 (Moana), in which Rangiah J stated at [73], after referring to Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 (Huynh), that he was unable to see how s 501(2) could be construed to require the Minister to take into account personal factors which might moderate the risk the person might pose to the community (North J agreed at [1] of Moana). Her Honour also noted that Rangiah J considered that, in exercising the discretion under s 501(2), the Minister was required to consider whether there is a risk of harm to the Australian community. That issue does not arise in the current appeal and it is unnecessary to say anything further about it (see, however, Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [33]-[39] per Flick, Griffiths and Perry JJ and Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22]-[23] per Allsop CJ, Flick and Griffiths JJ).

19    Fifthly, her Honour concluded that there was nothing in the subject-matter, scope or purpose of the Act which implied an obligation on the Minister’s part to take into account the possibility that, if granted a bridging visa permitting him to be in the community while awaiting the Minister’s subsequent decision as to whether partner visas would be granted, the appellant might yet prove that he was capable of rehabilitating himself. At [43], her Honour described the matters which the appellant had identified as mandatory relevant considerations as being “very much factors personal to the applicant”, as was the case in Huynh. Her Honour concluded that these factors did not involve “the legal or statutory consequences of the decision” and any failure to take them into account would not constitute jurisdictional error.

The appeal

20    The appellant represented himself. That may explain the drafting of his notice of appeal, which raised the following grounds of appeal (errors in original):

1.    The Minister failure to properly consider stated intention

Particulars

a)    Substantive visa application

2.    The Minister failure to Consider Relevant Consideration

Particulars

a)    The applicant is married to an Australian citizen.

3.    The Minister failure to properly weigh the interest of the applicant’s child and spouse.

4.    The Respondent denied the applicant procedural fairness and natural justice.

5.    The decision of the Respondent was affected by apprehended bias.

Particulars

On 13 January 2014 the Respondent publicly declared that henceforth he would make all decisions under s 501 of the Migration Act personally, thus denying access to the Administrative Appeals Tribunal. A lay observer would reasonably have apprehended that the Respondent was influenced by political considerations and did not approach subsequent decisions, including this decision, with an open mind.

21    In the appeal, the appellant also relied upon an affidavit sworn by him and dated 15 September 2015. The affidavit was substantially in the form of legal submissions, not evidence. The appellant filed a detailed outline of written submissions and also made oral submissions during the course of the appeal hearing. His submissions may be summarised as follows.

22    First, in support of his contention that the Minister failed to consider his stated intention to apply for partner visas, the appellant submitted that the Minister was obliged by s 65 of the Act to grant him a visa if he was satisfied that all the relevant criteria were met, as the appellant said would be the position in his case. Accordingly, the Minister was bound to allow him to apply for the partner visas.

23    Secondly, while acknowledging that the Minister could take into account whether a visa applicant satisfied him that there was compliance with the character test, there was apprehended bias on the part of the Minister because, on its proper construction, s 65 of the Act applied and was “retrospective under s 501”.

24    Thirdly, the appellant complained of procedural unfairness because he was never informed that the Minister would personally consider his application. He also complained of procedural unfairness in respect of the following additional matters:

(a)    the Minister’s failure to consider that the appellant’s drug offence was committed twelve years ago (when the appellant was young), and the intervening rehabilitation period, including the fact that he had been assessed by the parole board as not being a risk to the Australian community; and

(b)    the primary judge had misconstrued s 25D of the AIA in concluding that the Minister had not failed to take into account the fact that the appellant was on parole.

25    Fourthly, in support of his claim of apprehended bias, the appellant submitted that the Minister should have delegated the matter because he was a first time offender and the consequence of the Minister personally deciding his visa application was to deny him a right of review on the merits in the Administrative Appeals Tribunal. He contended that the Minister’s involvement was motivated by “political expediency”.

26    Fifthly, the appellant contended that the primary judge erred in concluding that, even if the Minister had erred in the manner suggested by the appellant, the errors were not jurisdictional. He argued that Moana was plainly wrong and that the Minister had erred by not protecting his family, contrary to article 16(3) of the Universal Declaration of Human Rights and also by not acting in accordance with the United Nations Convention on the Rights of the Child.

27    Sixthly, the appellant submitted that no order for costs should be made against him in the event that his appeal was unsuccessful because the Minister had failed to “negotiate” in matters relating to his proposed partner visa applications.

28    Finally, during the course of oral argument the appellant sought to raise an additional ground relating to s 75 of the Act, which will be dealt with below.

Disposition of the appeal

29    It is convenient first to consider the appellant’s contentions that the primary judge erred in not finding that the Minister had failed to take into account both the fact that the appellant had been granted parole as well as the appellant’s stated intention to apply for partner visas.

30    It should be emphasised that it is important not to lose sight of the fact that this is an appeal by way of rehearing (see Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) [23] per Gaudron, McHugh, Gummow and Hayne JJ and CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111] per Gaudron J). As such, the appellant must establish an error in the judgment at first instance, whether that error be one of law, fact or in the exercise of a discretionary power. As the plurality stated in Allesch at [23] (footnotes omitted):

…the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…

31    No appellable error has been established in respect of the primary judge’s finding in respect of the Minister’s awareness of the fact that the appellant was on parole. It was open to her Honour to conclude that the Minister was plainly aware of that fact because there were several express references to that fact in the material that was before the Minister, including the submissions made on the appellant’s behalf which the Minister said he had considered. It might also be added that a copy of the Parole Order dated 11 April 2012 was included in the material which the Department briefed to the Minister. Moreover, the Department’s correspondence with him and his with it referred to him being at the Villawood Immigration Detention Centre, i.e. clearly, he was no longer in prison. The Minister was not bound to regard the Parole Board’s assessment that the appellant was eligible for parole to be determinative of whether the Minister was satisfied that the appellant passed the character test under s 501 of the Act.

32    It was also open to her Honour to reason that the Minister’s failure to make any express reference to the appellant being on parole in his statement of reasons indicated that the Minister did not regard that factor as material and that it was not evidence or material upon which his findings were based. These inferences were open to be drawn in circumstances where, relevantly, the Minister’s obligation to give reasons under s 25D of the AIA was to “set out the findings on material questions of fact and refer to the evidence or other material upon which those findings were based”. As McHugh, Gummow and Hayne JJ observed in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 232 at [68] in reference to a similarly-worded obligation imposed on the Refugee Review Tribunal by s 430 of the Act (emphasis in original, footnotes omitted):

…In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

33    Similarly, no appellable error has been demonstrated in respect of the primary judge’s finding that the Minister did not fail to consider the appellant’s stated intention to apply for partner visas if he were granted a bridging visa. We discern no appellable error in the reasons given by her Honour in coming to that view (see [15] above). There were numerous explicit references to that stated intention in the materials which were briefed to the Minister, including in the Department’s covering letter to the Ministerial Brief, as well as in the issues paper which formed part of those materials. It also formed the basis for the parties, including the Minister, agreeing to enter into consent orders in respect of the judicial review challenge to the Minister’s first decision to reject the appellant’s bridging visa application. In these circumstances, it was reasonably open to her Honour to reason as she did on this issue.

34    The other matters raised by the appellant in his notice of appeal and in his outline of written submissions involve matters which were not raised before the primary judge. These matters are his claims that the Minister erred:

(a)    by failing to consider that he is married to an Australian citizen and that article 16(3) of the Universal Declaration of Human Rights effectively creates a right for his wife not to be separated from him;

(b)    by failing properly to weigh the interests of the appellant’s wife and child;

(c)    by being influenced by political considerations which gave rise to an apprehension of bias, as well as the Minister’s determination to make the decision personally and not have it delegated;

(d)    by misconstruing s 65 of the Act;

(e)    by procedural unfairness in not informing the appellant that the decision on his bridging visa application would be made by the Minister personally;

(f)    because the Minister’s decision was unreasonable and plainly unjust; and

(g)    by failing to consider that the appellant would be prevented from applying for the partner visas offshore because of the “special return criteria” in cl 5001(a)(c) in Sch 5 of the Migration Regulations 1994 (Cth) (the Regulations).

35    The Minister did not contend that the appellant should not be permitted to raise these new grounds on the basis that, if they had been run below, they might possibly have been met by further evidence (as to which see, for example, Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438 per Latham CJ, Williams and Fullagar JJ; Water Board v Moustakas [1988] HCA 12; (1994) 180 CLR 491 at 498 per Mason CJ, Wilson, Brennan and Dawson JJ).

36    Additional principles apply, however, where an appellant seeks to raise new matters and although there is no claim by the respondent that evidence could have been given below in answer to those grounds, the respondent does not consent to the appellant having leave to raise new grounds, as is the case here. Some of these principles were described in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [37]-[39] by Allsop J (as his Honour then was, with whom Drummond and Mansfield JJ agreed):

37 It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton v Holcombe supra at 7-8.

38 However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point. First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked: Gleeson CJ and Hayne J in Crampton, supra at [15] and [157], respectively and University of Wollongong v Metwally, supra; see too JB Chandler Investment Company Limited (in voluntary liquidation) v Commissioner of Taxation [1993] FCA 641; (1993) 47 FCR 588 per Gummow J at 593G. Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice. The extent of the consideration of "the interests of justice" was discussed by Branson J and Katz J in H v Minister for Immigration and Multicultural Affairs, supra, at [8]. For my part, I would reserve comment upon the matters there discussed in this context concerning the relevance of the growing pressure on the time of courts. Considerations of the kind there discussed by their Honours have not formed part of my reasons, expressed later, for refusing to entertain certain issues on appeal. Nothing I have said is intended to be in any way contrary to, or inconsistent with, what was said by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 or with the cases there discussed, that being an authority specifically relied on by the appellants in argument.

39 Whether or not a point was raised at the hearing should not be decided narrowly or technically. The pleadings and the particulars will ordinarily mark the boundaries of the dispute. Due regard also should be had to the direction of the conduct of the hearing within or outside these marked boundaries: Water Board v Moustakas, supra at 497-98.

37    We do not consider that the appellant should be permitted to raise an allegation of apprehended bias in the appeal. The Minister accepted that he had directed that consideration of all s 501 applications should be referred to him. As noted above, in the proceeding below this ground was initially raised but was then subsequently withdrawn by the appellant’s solicitor. In those circumstances, the appellant should not be permitted to resurrect a ground which was abandoned, presumably after consideration and assessment by his legal representative. We could indicate that, in any event, we would have accepted the Minister’s submission that this proposed ground of apprehended bias was, and remains, “plainly hopeless” having regard to the relevant principles established in cases such as Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [102] per Gleeson CJ and Gummow J and Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48, which recognise and give appropriate effect to the Minister’s political role. In Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [50], Gaudron, Gummow and Hayne JJ acknowledged the relevance of political considerations in the context of the performance of the Minister’s functions (footnotes omitted):

…There may be cases in which a decision-maker, especially a Minister, may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office. It has been said that "the whole object" of a statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy". It would be wrong to assume that in every case a decision-maker can act only if he or she has the same level of independence and security as a judge and, in that sense, has nothing to gain or lose from the decision made.

38    The appellant has not pointed to any “exceptional circumstances” which would justify him being permitted to raise this ground which was consciously abandoned below (see Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at [7] (Metwally)).

39    As to the other grounds which the appellant seeks to run for the first time in the appeal, we do not consider that he has provided an adequate explanation as to why the grounds were not run below. This would be sufficient of itself to deny him leave to advance these grounds on appeal. In any event, and even if it were the case that these grounds would not present any real prejudice to the Minister if he was required to respond to them in the appeal, we consider it unnecessary to determine these matters because the proposed grounds of appeal all lack merit. This alone provides a sufficient basis for not permitting them to be raised for the first time now.

40    First, as to the claim that the Minister failed properly to weigh the interests of the appellant’s wife and child, the task of weighing competing interests was a matter for the Minister. Merely to allege that those interests were not “properly weighed” invites the Court to embark on an impermissible merits review. This proposed ground was doomed to fail. It did not raise an arguable jurisdictional error.

41    Secondly, as to the claim that the Minister failed to consider that the appellant is married to an Australian citizen and that his wife had a right under article 16(3) of the Universal Declaration of Human Rights not to be separated from her husband, the Minister plainly did take into account the interests of the appellant’s wife and her status as an Australian citizen, as is evident from [19]-[21] of the Minister’s statement of reasons. The fact of his wife’s Australian citizenship was referred to repeatedly in the materials that were briefed to the Minister. There is also an express reference to that fact in [19] of the Minister’s statement of reasons. Furthermore, we accept the Minister’s contention that, in any event, article 16(3) of the Universal Declaration of Human Rights does not create any expectation that the interests of the appellant’s wife have precedence over protecting the Australian community. In addition, the Minister said that he had taken into account the wife’s stated intention to accompany the appellant to Nigeria if he was unable to remain in Australia.

42    Thirdly, as to the alleged misconstruction of s 65 of the Act and its interrelationship with s 501, we accept the Minister’s submission that it is plainly wrong of the appellant to argue that the Minister was bound to grant the appellant a bridging visa by reason of the operation of s 65 of the Act. The two provisions need to be read together. One of the critieria of s 65(1)(a)(iii) was that the appellant had to satisfy the Minister that he had passed the character test under s 501. The Minister was not satisfied that the appellant had passed that test.

43    Fourthly, the alleged procedural unfairness has no substance in circumstances where the appellant was put on notice by the Department’s letter dated 28 November 2013 that a decision on his application for his bridging visa could be made either by the Minister personally or by a delegate. In the events that occurred, the first decision refusing the appellant a bridging visa was taken by the Minister personally. Consent orders were then entered into on 22 April 2014 under which that decision was set aside and the parties agreed that the bridging visa application should be remitted to the Minister for reconsideration. Accordingly, the appellant was aware from the very terms of the consent orders that the decision would again be made by the Minister. He was also sent a Departmental letter dated 13 May 2014 in which he and his solicitor were told they had a further opportunity to provide comments and further documentation in relation to the matter if the appellant wished. The appellant’s solicitor replied in a letter dated 27 May 2014, which attached further material in support of the appellant’s application for a bridging visa.

44    Fifthly, the appellant’s proposed grounds that the Minister’s decision was unreasonable and unjust were not expanded in oral argument. We accept the Minister’s submission that his decision was reasoned and that the findings made by him were open on the material before him. We can see no basis in the circumstances here for any claim that the Minister’s decision was unreasonable in the legal sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

45    Sixthly, as to the proposed ground relating to the special return criteria in cl 5001 of Sch 5 of the Regulations, there is no foundation for the appellant’s contention that this provision would prevent him from applying for partner visas offshore. As the Minister pointed out, the special return criteria operate to prevent persons whose visas have been cancelled under s 501 from making a visa application offshore, as opposed to a visa having been refused, as is the case with the appellant.

46    Finally, the appellant sought leave this morning to raise an additional ground of appeal in relation to the timing provision in s 75 of the Act. No prior notice of the proposed ground had been given to the respondent. As the Minister’s counsel pointed out, even if the ground was permitted to be run, it would require additional evidence of the circumstances surrounding the making of the consent orders. We also note that the appellant was represented below by a solicitor who was an accredited specialist in immigration law, and this ground was not run below. In these circumstances leave should not be granted for this ground to be run on the appeal (see Metwally).

Conclusion

47    For these reasons, the appeal should be dismissed and the appellant ordered to pay the Minister’s costs. There is no substance in the appellant’s contention that he should not be ordered to pay the Minister’s costs of the appeal. Orders will be made accordingly.

Associate:

Dated:    18 November 2015