FEDERAL COURT OF AUSTRALIA

Hay v Minister for Home Affairs [2018] FCAFC 149

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

WHITE J:

1    I agree with the reasons of Colvin J and with the orders which he proposes.

Associate:

Dated:    5 September 2018

REASONS FOR JUDGMENT

MOSHINSKY J:

2    I agree with the reasons and conclusions of Colvin J.

Associate:

Dated:    5 September 2018

REASONS FOR JUDGMENT

COLVIN J:

3    Mr Hay was born in Scotland but has lived in Australia since he was 12 years old. In 2015, he was convicted of sexually based offences involving children. He was sentenced to a term of imprisonment of 12 months for one offence and 6 months for another (to be served concurrently as to part). His visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). As required by s 501CA(3), he was given written notice of the decision and was invited to make representations to the Minister about revocation of the decision. Mr Hay made representations in accordance with the invitation. The Minister did not revoke the original decision.

4    Mr Hay sought judicial review in this court. His application was refused. Mr Hay now brings an appeal.

5    The grounds of appeal advanced by Mr Hay describe alleged jurisdictional error by the Minister rather than alleged error by the primary judge. In that form they disclose no arguable basis for an appeal: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771.

6    Mr Hay appeared on his own behalf. The Court ought to afford appropriate leniency as to procedural requirements having regard to his lack of legal representation. Nevertheless, he must comply with requirements to state and particularise his case in a manner that discloses adequately his grounds: BBT16 v Minister for Home Affairs [2018] FCA 1225 at [3]-[5].

7    The Minister recognised that Mr Hay may apply to amend his grounds so that they allege that the primary judge erred in not finding the errors described in the grounds. However, the Minister maintained that the grounds lacked merit even if read in that way. Further, some of the grounds raised matters that had not been advanced before the primary judge. Nevertheless, without conceding their merit, the Minister raised no objection to the grounds being amended and argument being presented concerning matters not advanced before the primary judge. I will address the appeal grounds on that basis.

8    The grounds raised by Mr Hay concern an alleged failure by the Minister to consider particular matters. Though expressed as two grounds, by way of particulars seven matters are raised as matters which the Minister 'failed to consider'. For reasons stated below, there was no error by the primary judge in finding that there was no jurisdictional error in the decision by the Minister not to revoke the cancellation of Mr Hay's visa.

Relevant principles

9    In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56] Robertson J considered an application to review a decision under s 501CA not to revoke the cancellation of a visa after representations were made seeking revocation. His Honour observed that the representations as a whole, but not each matter raised within them, were mandatory relevant considerations. The correctness of this observation in Goundar was left open in Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [16]. In Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42], Flick J stated that there may be circumstances where there is a failure to properly take into account the representations as required by s 501CA if 'one or other - but not all - of the discrete matters raised' for consideration by the Minister have been addressed.

10    In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, a decision by the Minister not to revoke under s 501CA was set aside on the basis of a failure by the Minister to consider a matter that had been advanced in representations, namely the hardship to Mr Viane's partner if she moved to Samoa with him as a consequence of the revocation of his visa. Rangiah J (Reeves J agreeing) held that if the Minister overlooks 'a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) which if accepted would or could be dispositive of the decision, the Minister's error may be characterised as jurisdictional error': at [30].

11    In reaching the same result in Viane, I held at [66] that 'as the making of representations about the revocation of the original decision is a condition that must be met before the statutory power to revoke is enlivened, there is a statutory obligation on the part of the Minister to consider whether the required state of satisfaction is met by reference to the material presented in the representations'. Therefore, 'a state of satisfaction formed without considering each of the matters that are raised in the representations in a manner which identified them as significant would be a breach of the statutory requirement to consider the representations': at [72]. It would be a failure to conform to a part of the statute that must be met in order for there to be a valid exercise of power: at [75].

12    Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ explained jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'. Further, statutes ordinarily incorporate a threshold of materiality in the event of non-compliance before there will be a failure to meet the requirements of the statute in a manner that will be jurisdictional: at [29]. The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance 'could have made no difference to the decision that was made in the circumstances in which the decision was made': at [30].

13    As I have noted, under s 501CA(3) there is a statutory obligation to invite representations to the Minister about revocation of a decision to cancel a visa under s 501(3A). If representations are made, the Minister may revoke the cancellation if the Minister is satisfied, relevantly for present purposes, that there is 'a reason why the original decision should be revoked'. If representations are made then the Minister must form the required state of satisfaction after having regard to those representations. The formation of that state of satisfaction is a precondition to the valid performance of the statutory task of deciding whether to revoke the cancellation of the visa.

14    However, it is a question of statutory construction as to whether the precondition is met if the Minister has regard to the representations in a general sense or whether the Minister must have regard to particular matters raised in order to conform to the statute. If the latter, then the question arises whether the precondition that must be met is to the effect that the Minister must consider only 'a substantial, clearly articulated argument' or a 'significant' matter or each and every matter. Whatever the requirement, if the Minister's state of satisfaction is formed without regard to particular matters that must be considered then there is a failure to comply with the statute. Further, Hossain makes clear that even if that requirement is not met, it is only if the failure is of a kind that meets the 'threshold of materiality' that the required state of satisfaction will not be formed in conformance with the statutory requirement with the consequence that there will be jurisdictional error.

15    For the reasons stated below, it is not necessary in this case to consider the precise type of failure to consider a matter raised in representations that may give rise to jurisdictional error in the formation by the Minister of the required state of satisfaction. Nor is it necessary to consider the precise ambit of the threshold of materiality that might apply before there is any such error. That is because each of the seven matters raised by Mr Hay was considered by the Minister or, if not considered, was not raised in the representations made to the Minister.

Matters which the Minister allegedly failed to consider

16    The first two matters raised by Mr Hay as matters that the Minister allegedly failed to consider concerned the length of time he had spent in Australia without conviction and the impact that his time in prison and immigration detention would have on his risk of re-offending. In oral submissions Mr Hay accepted, correctly, that those matters had been addressed by the primary judge and were properly found to have been considered by the Minister.

17    The third matter concerned personal counselling and psychology sessions undertaken by Mr Hay which were said to reduce his risk of re-offending. The Minister did consider representations about evidence of Mr Hay's completion of rehabilitation programs together with other evidence (paras 57-64). Therefore, this was not a matter that the Minister failed to consider. On the appeal, the Court received an affidavit as to further sessions attended by Mr Hay since the decision of the Minister. He submitted that these matters showed that he had participated in those programs with good effect even though the Minister had doubted this would occur. However, these matters concern events after the Minister's decision and are not relevant to the question whether there was jurisdictional error. In any event, they do not appear to raise matters that were different in any material respect to those matters that were considered by the Minister.

18    The fourth matter concerned the effect on the health and welfare of Mr Hay's dependent parents, his partner and closest relatives if he was required to leave Australia. However, these matters were expressly considered by the Minister (paras 20-26, 68).

19    The fifth matter concerned Mr Hay's own declining health exacerbated by a physical assault resulting in an aneurism which he said required surgery and ongoing treatment. When Mr Hay made his representations to the Minister concerning revocation of the cancellation of his visa, he completed a form in his own hand. He was asked to provide health information that may be an impediment to his return (to his place of citizenship). He completed that section referring to a number of medical conditions but did not refer to his aneurism. Further submissions were provided by a migration agent. In those submissions it was said that Mr Hay's health was such that it would be extremely difficult for him to establish himself in the United Kingdom. The matter was put in a general way. The submissions enclosed a copy of a report as to a psychological assessment of Mr Hay. The report contained a brief summary of Mr Hay's physical health in which there was reference to the psychologist being told Mr Hay had an aneurism in his brain and he was awaiting diagnostic imaging.

20    Mr Hay's health was addressed by the Minister (paras 30-34). The Minister made specific reference to the psychologist's report and other information concerning Mr Hay's health. In those circumstances there can be no error in the Minister failing to specifically refer to matters concerning the aneurism.

21    The sixth and seventh matters raised concerned hardship in obtaining health care in the United Kingdom and health concerns in relation to air transportation. In oral submissions Mr Hay said that there may be difficulties in him being able to access social security and other benefits because he has not worked in the United Kingdom. There was no reference to these matters in submissions to the Minister so no jurisdictional error could arise from a failure to consider these matters (about which there was no evidence before the court). The psychologist's report enclosed with the submissions to the Minister did say that Mr Hay 'had no awareness of how to carry out everyday activities [in the United Kingdom] such as interacting with health services, support agencies and other community agencies'. However, this statement does not raise any issue about ineligibility to access such services. There was an express finding that Mr Hay will have access to similar levels of health and other services in the United Kingdom (para 35). The reference to health concerns in relation to air transportation may be a reference to the aneurism to which Mr Hay is undergoing treatment. For the reasons I have given, there can be no error in the Minister failing to specifically refer to matters concerning the aneurism.

22    It follows that no error has been demonstrated in the approach of the primary judge.

23    Ground 2 of Mr Hay's original application raised an issue as to the constitutional validity of s 501(3A). The primary judge ruled that that ground was foreclosed by the decision in Falzon v Minister for Immigration and Border Protection [2018] HCA 2. Mr Hay did not challenge that conclusion on the appeal but did at one stage submit that the primary judge had determined his application by considering only the validity of s 501(3A). That submission was mistaken, as it is plain that the primary judge considered all of Mr Hay's grounds.

24    In the course of oral submissions, Mr Hay raised an issue about references to the nature of his visa that was cancelled. The primary judge stated that Mr Hay became the holder of a Class BF Transitional (Permanent) visa on 1 September 1994 pursuant to the Migration Reform (Transitional Provisions) Regulations 1994 (Cth). Under the terms of those regulations, the holders of certain visas became the holders of other visas by operation of law. Mr Hay said he had been in Australia since 1970 and had only left once for a short holiday. He did not apply for a visa in 1994. He did not understand how he could have obtained a visa in 1994. However, the nature of the regulations explains the date. In any event, s 501(3A) applies irrespective of the nature of the visa held by Mr Hay.

Conclusion and orders

25    For reasons I have given, the appeal grounds lack any merit and the appeal should be dismissed. The parties were invited to make submissions as to costs orders subject to the outcome of the appeal. The Minister's position was that costs should follow the event irrespective of the outcome. Mr Hay made submissions to the effect that he would be unable to meet any costs order by reason of having to meet costs of relocating family members in the interests of their health. Bringing that matter to account, I am not persuaded that it is a sufficient reason to decline to award costs to the Minister. There should be an order that Mr Hay pay the Minister's costs of the appeal.

Associate:

Dated:    5 September 2018