FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Home Affairs [2019] FCAFC 128

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on his amended notice of appeal dated 22 July 2019.

2.    The appellant have leave to adduce evidence on the appeal, that evidence being the affidavit filed on 13 May 2019 affirmed by Ms Thi Le.

3.    The appeal be allowed.

4.    Order 1 made by the primary judge on 28 March 2019 be set aside and, in place of that order, the Minister’s decision made on 5 December 2017 be set aside.

5.    The respondent pay the appellant’s costs of the appeal, 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:

Introduction

1    This appeal is from the orders of a judge of this Court made on 28 March 2019 dismissing, with costs, an application for judicial review of a decision of the Minister, acting personally, to set aside a delegate’s revocation decision and to cancel the appellant’s visa pursuant to s 501BA(2) of the Migration Act 1958 (Cth): Nguyen v Minister for Immigration and Border Protection [2019] FCA 423.

2    The background facts as found by the Minister were, relevantly, that in 2014 the appellant was convicted of supplying a large commercial quantity of a prohibited drug and sentenced to 6 years imprisonment, with a non-parole period of 3 years and 3 months. The appellant was the holder of a Spouse (subclass 100) visa granted on 19 May 2010. He first arrived in Australia in 1998. He has ordinarily resided in Australia since that time.

The statutory provision

3    Section 501BA of the Migration Act provides as follows:

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.

The amended notice of appeal

4    The proposed amended notice of appeal is in the following terms:

Grounds of appeal

1.    The primary judge erred in failing to find that the Respondent’s (Minister’s) critical finding that there is an “ongoing likelihood” the Appellant will reoffend was legally unreasonable.

Particulars

a.    The finding is unsupported by probative evidence and/or is an inference drawn without any logical connection to the evidence.

i.    The sentencing judge found that he was “unlikely to reoffend” and he had “good prospects of rehabilitation”.

ii.    The finding assumed a likelihood of reoffending already existed but that assumption was unfounded.

iii.    The expert’s report found the Appellant did not struggle with drug dependence or mental health issues.

iv.    The appellant’s only other 2 offences were relatively insignificant and occurred 11 years ago.

b.    The finding was based on speculation as to what might occur in the future but without any assessment of the chances of the causal factors for the past offending to materialise.

c.    The finding failed to take into account the mitigating factor of the Appellant's shame and remorse for causing suffering and loss to his wife and child, his strong motivation to make it up to them, and his fear of being separated from them as a strong deterrent to reoffending.

d.    The finding was an “overall” assessment, which by implication was reached by a balancing exercise, yet the Minister omitted any rational justification for the finding in circumstances where the mitigating factors outweighed the contrary factors.

2.    The primary judge erred in failing to find that the Minister misunderstood [the] operation of s.501BA(2) of the Migration Act 1958 (Cth) as he misunderstood that s.501BA(3) of the Migration Act precluded him from giving effect to the rules of natural justice by inviting the appellant to make submissions or provide further material: Ibrahim v Minister for Home Affairs [2019] FCAFC 89.

Particulars

a.    The express terms of the Minister's statement of reason infer that he mistakenly considered that the decision he had to make was to proceed under s.501BA(2) of the Migration Act without providing natural justice.

b.    As the Minister recognised that as a number of months had elapsed since the Appellant’s last submissions, it suggested a view that it would be fair to give him an opportunity to make further submissions, but the Minister understood that he was barred from doing so.

c.    The Minister's finding of an “ongoing likelihood” of reoffending was partly predicated on the reason that the Appellant’s rehabilitation from drug use was untested in the community for a substantial period, but that could have been ameliorated had he understood that it was open to him to invite submissions and further material from the Appellant.

    (Original emphasis.)

Application to admit evidence on the appeal

5    The appellant also seeks to read on the appeal an affidavit filed on 13 May 2019 affirmed by Ms Thi Le, the appellant’s wife. The potentially relevant part of that affidavit is what the deponent was told by the appellant’s parole officer apparently in around early 2018 about her husband’s negative results whenever he did a drug test. The appellant submits that evidence goes to the materiality of the error alleged in proposed ground 2. The respondent objects to that evidence being admitted on this appeal, and notes that no application has been made to adduce that evidence on appeal as required by the Federal Court Rules 2011 (Cth) and relied on the consideration of the issue in CSF17 v Minister for Home Affairs [2019] FCA 569, particularly at [29].

6    We admit this material, subject to relevance. It relates to proposed ground 2 and for that reason was not relevant in the proceedings before the primary judge. Although the evidence is hearsay we take it that it is being adduced as material which the appellant says he would have supplied to the Minister if the Minister had afforded him an opportunity to be heard, and not for the purpose of proving in this Court the truth of what the parole officer said. In the case of a submission to the Minister the hearsay nature of the material would not be a bar to its consideration by the Minister as the Minister is not governed by the rules of evidence. We would propose to admit this material subject to the limitation that its use be limited to the purpose we have identified. Counsel for the respondent did not wish to cross-examine the deponent.

7    Adopting the considerations referred to in CSF17 at [32], we take into account the potential relevance of the material and its potential weight. As will be seen, ultimately we do not regard the evidence as necessary for the resolution of the legal point the appellant seeks to raise, but in the present case we do not regard that as requiring its rejection. We dispense with compliance with the Federal Court Rules 2011 (Cth) to the extent necessary to permit the reception into evidence of this affidavit.

Consideration of the application to rely on the proposed grounds of appeal

8    We note the Minister submits that neither ground has sufficient merit for it to be in the interests of justice for leave to be granted to rely on the proposed amended notice. In the event that leave is granted, and to assist the Court in considering the merits of the proposed grounds for the purposes of the leave application, the respondent Minister addressed the grounds as they were put in the appellant’s submissions.

9    Proposed ground 1 appears to correspond broadly to ground 4 before the primary judge. It appears that the submissions sought to be put before the Full Court travel much more broadly than did the submissions before the primary judge. The primary judge identified that ground as being that the Minister’s decision was “unreasonable” because his assessment as to the prospects of Mr Nguyen re-offending was “not rationally/logically supported by facts”.

10    We will address the question of leave together with the substance of each ground below.

The reasons of the primary judge

11    The primary judge said, at [17], that the Minister variously expressed his conclusion as to the prospect of Mr Nguyen re-offending, that being that there was “an ongoing likelihood that Mr NGUYEN will reoffend” (at [52]) or that he “could not rule out the possibility of further offending” (at [96]). It was against this assessment that the Minister proceeded to weigh the other considerations of relevance and reached his decision to cancel the visa.

12    At [18], the primary judge identified two lines of challenge thrown up by grounds 1 and 4 before him, being that this assessment was unreasonable either because:

•    it runs counter to the assessment of the sentencing Judge; and/or

•    it remains unexplained – or is “irrational” or not “logically supported by facts”.

13    The primary judge rejected both lines of challenge. His Honour said as follows, at [19]-[23]:

The relevant parts of the Minister’s reasons appear in that part of the Statement of Reasons under the heading “Mitigating/causal factors/rehabilitation”. The Minister’s reasons refer to reports which were before him and continue on as follows:

35.    I note in a 2014 pre-sentence report, Mr NGUYEN was assessed as a medium/low risk of reoffending according to the Level of Service Inventory – Revised actuarial risk/needs assessment tool with criminogenic needs stated as being ‘drug issues’.

…

38.    I note the 2014 sentencing Judge considered that Mr NGUYEN was unlikely to reoffend and that he has good prospects of rehabilitation. He also noted he would need assistance to maintain his domestic relationship, and require direction in respect of his associates.

The Minister then addresses Mr Nguyen’s “[c]onduct in [the] custodial and non-custodial environment” and states:

48.    Mr NGUYEN has supplied letters from members of the community and church groups. The available information indicates that Mr NGUYEN has the support of the members of the church and friends in the community. His legal representative submits that Mr NGUYEN has the support of family and friends, and that Mr NGUYEN’s offending is not consistent with his true nature and purpose and there is a very low risk of him committing further offences. The 2014 sentencing remarks note that Mr NGUYEN had an offer of employment upon his release, from a former employer.

The Minister then express his “[c]onclusion” in part as follows:

51.    However, I also note that Mr NGUYEN has used drugs socially for a long period and this escalated to more frequent use, to the point that he was said to be smoking ice daily in the lead up to his offending in 2013. I considered that leading up to his offending he had his close family and friends for support and was employed, yet these did not act as protective factors. Further, Mr NGUYEN did not cease his offending despite receiving convictions in 2001 and 2002 and having the benefit of non-custodial sentences, and reoffended some 11 years later in 2013, committing a serious drug supply offence. I also take into account that his rehabilitative efforts and ability to refrain from drug use, this being linked to his risk of reoffending, has not been tested in the community for a substantial period.

52.    Overall, I find that there is an ongoing likelihood that Mr NGUYEN will reoffend. If Mr NGUYEN did reoffend involving serious drug offending, it places members of the community at risk of physical or psychological harm.

The “[c]onclusion” expressed at the very end of the Minister’s reasons, following an exposition of each of the considerations of relevance to the decision to be made, includes the following:

96.    I find that the Australian community could be exposed to significant harm should Mr NGUYEN reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr NGUYEN, notwithstanding factors including his efforts at rehabilitation and his strong family and community support. The Australian community should not tolerate any further risk of harm.

The assessment made by the Minister as to the prospects of Mr Nguyen re-offending were thus made in the context where (inter alia):

•    the 2014 pre-sentence report assessed the risk as being “medium/low” (at para [35]); and

•    the sentencing Judge was of the view that Mr Nguyen was “unlikely to reoffend” (at para [38]).

The context also included:

•    the consideration given to Mr Nguyen’s drug use (at para [51]).

The assessment to be made by the Minister was for him to make; the Minister was by no means bound to accept the assessment of the sentencing Judge as determinative. The remarks of the sentencing Judge were taken into account – as were the other matters to which the Minister referred.

It cannot be said that the Minister’s assessment was unreasonable.

Nor can it be said that his reasoning process is “irrational” or not “logically supported by facts”. The reasoning process is to be found primarily in para [51] of the Statement of Reasons. That paragraph explains the path whereby the Minister reached his “overall” assessment in para [52]. Although others may well have reached a different conclusion, it cannot be said that the reasons relied upon were not disclosed or were “irrational”. The facts referred to in para [51], regarding Mr Nguyen’s drug use in the lead up to his offending, were common ground. It was the weight to be given to these facts which in substance attracted the debate; but the weight to be given to those facts was a matter for the Minister.

Consideration of proposed ground 1

14    In relation to proposed ground 1, the appellant first focused on the Minister’s statement, at [51], that there was an ongoing likelihood that the appellant will re-offend. The appellant then referred to the sentencing remarks in the District Court of New South Wales to the effect that he was unlikely to re-offend and had good prospects of rehabilitation. The appellant referred to the presentencing report dated 28 March 2014 to the effect that the appellant was assessed as a medium/low risk of re-offending. Further, reference was made to a psychologist’s report dated 24 March 2014. It was submitted that the psychologist’s report and the remarks of the sentencing judge did not support the conclusion that there was an ongoing likelihood of re-offending. Indeed, the appellant submitted, the remarks of the sentencing judge were to the opposite effect. The use by the Minister of the word “ongoing” was criticised as an “ambiguous and evasive choice of descriptor” which said nothing about the degree of likelihood. Also criticised was that the expression “ongoing likelihood” assumed that a likelihood of re-offending already existed, but the appellant submitted that was an unfounded assumption. The appellant’s submission continued that around eleven years prior to his drug offence, he was convicted of 2 relatively insignificant offences for deception for which he served community service and a fine, and that was the total of his past criminal record. Even the sentencing judge, the appellant submitted, was prepared to accept that in the circumstances he was a person of good character. Therefore, the Minister had failed to establish from which point in time the likelihood of re-offending commenced and how it was continuing by reference to any material upon which he relied. The sentencing judge’s remarks negated any finding of a likelihood of re-offending, much less an ongoing one, the appellant submitted.

15    The appellant submitted that whether past offence findings logically informed the degree of likelihood of re-offending in a similar fashion must depend on the facts of the particular case. If the causal factors for the past offending had not been mitigated and were likely to be dominant again, then this would logically inform the degree of likelihood of re-offending.

16    The appellant submitted that the problem in this case was that the speculation as to what might occur in the future was done in a manner which was unsupported by probative material and the conclusion of an ongoing likelihood of re­offending was an inference drawn without any logical connection to the evidence. The finding was made without any assessment of the chances of the causal factors for the past offending materialising. The appellant relied on Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 574-5:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

17    The appellant submitted that, at [32]-[39], the Minister identified drug use as a causal factor in the offending, however the bigger picture was that the appellant was not a drug addict and his motivation for using drugs in the short period leading up to the offence were problems in his marital relationship (he was briefly living out of his marital home), financial pressure and the negative influence of harmful associates which enticed him into the crime.

18    The appellant submitted that upon a fair reading of all of the material, it became clear that his drug use was not the critical driving factor for the offence; he was not a serious long-term drug abuser that needed intensive intervention. Rather, the appellant submitted, the financial pressures linked with his familial issues led him to be involved with associates that negatively influenced him. He submitted that his drug use made him more vulnerable to be influenced and become heedless in his decision-making, especially misjudging how to handle his personal difficulties, but it was his association with these bad peer groups that lured him into offending.

19    The appellant submitted that the Minister failed to refer to his, Mr Nguyen’s, shame and remorse for how his wife and child have suffered due to his conduct, as well has his fear of being separated from them if he is returned to Vietnam, which was a strong deterrent for him not to re-offend if he were permitted to stay in Australia. It was clear from the evidence, the appellant submitted, that he had been motivated to make up for the suffering that he had caused his wife and child. His actions demonstrated that genuine intention. The appellant submitted that evidence should have been taken into account as a strong mitigating factor. The fact that it was not referred to in the Minister’s reasons indicated, the appellant submitted, that it was not considered, referring to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [52].

20    The appellant submitted that the Minister provided no explanation for why, in concluding that there was an ongoing likelihood of re-offending, the factors considered to increase the likelihood of re-offending outweighed the more numerous mitigating factors. Although an “overall” conclusion suggested a balancing exercise was undertaken, the appellant submitted that the Minister did not provide any cogent reasoning for why greater weight should be given to any one of the factors considered to increase the likelihood of re-offending to overshadow any of the mitigating factors.

21    The appellant submitted there were no findings made on the chances of the causal factors re-occurring such that it would lead to the likelihood of similar re-offending. As determined in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [51], viewed in the abstract, there might be a logical connection between the past offence findings and the likelihood of similar re-offending had the Minister relied on evidence capable of supporting a conclusion that it was possible that Mr Nguyen had a serious long-term drug abuse problem, had not rectified his marital issues and would resume contact with the negatively influencing associates. However, there were no findings made by the Minister about those causal factors that could logically connect the evidence to a likelihood of re-offending. Ultimately, in the absence of material which could transform that possibility into a probability of re-offending, it was legally unreasonable to conclude that there was a likelihood of re-offending, the appellant submitted. The appellant relied on Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620; 261 FCR 385.

22    The respondent Minister submitted that the statement at [52] of his reasons must be considered in the context of the decision as a whole, as the primary judge did at [19]-[20]. The statement appeared in one section of the Minister’s reasons, the section dealing with Risk to the Australian Community (at [30]-[54]). Notably, the Minister set out, at [96], a conclusion reached after considering all the matters dealt with in the Minister’s reasons. The Minister stated at [96] that he could not rule out the possibility of re-offending, notwithstanding countervailing factors that militated in favour of not cancelling the visa.

23    The Minister submitted that, as the Full Court had consistently emphasised, any assessment of reasonableness “will inevitably be fact dependent”, referring to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [48]. It was therefore of no assistance to the appellant to rely, as he sought to do, on factual findings made by the Minister in Ogbonna concerning that applicant’s risk of re-offending, which findings were the subject of judicial review in that case.

24    The Minister submitted that this ground rose no higher than an attempt to have this Court decide for itself whether the Minister should have come to a different conclusion on the material that was before him.

25    As is well established, the Minister submitted, the reasons of an administrative decision-maker (including those of a Minister) were not statutory terms to be construed; the decision was not to be read “finely with an eye keenly attuned to the perception of error”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272.

26    The Minister submitted that the appellant rehearsed what were said to have been causal factors for the appellant’s offending and sought to have the Court find what was the “real cause” of his offending. It was not the role of this Court to make such findings. Nor, the Minister submitted, could anything in those paragraphs demonstrate any error on the part of the primary judge, nor give rise to any finding that the Minister’s decision was beyond the scope of “decisional freedom … within which minds might differ”, nor that it was not “defensible as a rational exercise of power”, when considered against the statutory scheme under which it was made (s 501BA). The Minister referred to Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [5] and [23] per Allsop CJ.

27    As for the suggestion that the Minister’s statutory power miscarried by his having “failed to refer to” two identified matters, as the primary judge noted at [24], the Minister submitted that “[t]here is no necessity in an administrative statement of reasons to refer to each and every aspect of a particular issue for that issue as a whole to be properly considered.” The Minister also referred to Applicant WAEE v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47].

28    We turn to consider these submissions.

29    In our opinion, no jurisdictional error by way of legal unreasonableness is disclosed by or in the Minister’s reasons. Those reasons were, relevantly, divided into three parts: National Interest; Discretion; and Conclusion.

30    Under the first of these headings, National Interest, the Minister considered: the appellant’s criminal conduct; the risk to the Australian community, having regard to mitigating/causal factors and rehabilitation, remorse and insight into the appellant’s offending, and conduct in a custodial and non-custodial environment; and reached his conclusion in respect of the National Interest. The Minister referred not only to the appellant’s 2014 conviction but also to what the Minister described at [19] as the appellant’s earlier dishonesty offences, which he outlined at [24]-[26]. Important to the Minister’s reasoning was that the appellant received non-custodial minor penalties in 2001 and 2002 for his offences but this failed to deter him and he re-offended, as recorded in the Minister’s reasons at [27]. At [31], in considering the appellant’s risk of re-offending, the Minister noted what he described as causal or mitigating factors in relation to his criminal offending and also took into account the appellant’s overall conduct in the custodial and non-custodial environment and the appellant’s insight into his offending. He also in that paragraph recorded that he considered the appellant’s rehabilitative efforts, and his understanding that such information may now be dated. Having referred in some detail to the material in the Department’s submission, and at [50] to the various factors said to be indicative of lowering the likelihood of the appellant re-offending, the Minister considered two factors at [51]: that the appellant was said to be smoking ice daily in the lead up to his offending in 2013 even though at that time he had his close family and friends for support and was employed, and that although the appellant received convictions in 2001 and 2002 and had the benefit of non-custodial sentences, he re-offended in 2013, committing a serious drug supply offence. The Minister also noted that the appellant’s rehabilitative efforts and his ability to refrain from drug use, this being linked to his risk of re-offending, had not been tested in the community for a substantial period. It was in this immediate context that the Minister found that there was an ongoing likelihood that the appellant will re-offend. We regard the appellant’s reliance on Guo at 574-5 as misplaced because the present context is a different one and, more importantly, because, consistently with the dicta in Guo, here the Minister did make findings as to what had occurred in the past and treated those findings as a guide as to what will happen in the future.

31    In our opinion, the use of the word “ongoing” does not warrant the scrutiny the appellant seeks to give it. In our opinion, it means no more than the appellant had offended in the past and there was a likelihood that he will re-offend. We see nothing legally unreasonable in that conclusion. In our opinion it was an evaluative conclusion on a question of fact and degree reached by the Minister after considering the material which was before him, none of which bound him to reach a particular conclusion. It was in turn part of the basis on which the Minister concluded, at [54], that it was in the national interest to cancel the appellant’s visa.

32    Later in the Minister’s reasons, he considered whether there were relevant considerations that might support not cancelling the appellant’s visa despite the Minister being satisfied that the appellant did not pass the character test and that the cancellation of his visa was in the national interest. It was in that context that the Minister said, at [96], he could not rule out the possibility of further offending by the appellant. We see nothing legally unreasonable between the earlier finding that the appellant is likely to re-offend and the later statement by the Minister that he was not able to rule out the possibility of further offending. In our opinion, the later conclusion, although expressed in milder terms, follows from the earlier. Also, in our opinion, nothing turns on the Minister’s statement at [96] that the Australian community could be exposed to significant harm should the appellant re-offend in a similar fashion.

33    We do not accept the appellant’s submission that legal unreasonableness is demonstrated by the claimed failure of the Minister to provide detailed reasons why, in coming to his overall conclusion at [52] that there was an ongoing likelihood of the appellant re-offending, he considered the factors adverse to the appellant on that question, as summarised in [51], to outweigh those in his favour, as summarised in [50]. As we have said, the conclusion reached by the Minister at [52], and similarly at [96], was on a question of fact and degree after considering the material before him, and was open to him on that material. The fact that, as the appellant submits, the factors in his favour were more numerous than those adverse to him does not establish error: this is because it was not a mathematical exercise but an evaluative one and it was for the Minister to determine the relative weight of each factor. It is implicit in the Minister’s “overall” conclusion on this question at [52] that he considered the adverse factors outweighed, or were not ameliorated by, the favourable factors and, in the circumstances, it was not necessary for the Minister to record in any further detail his reasons for coming to that conclusion.

34    Nor do we accept the appellant’s submission that there were no findings made by the Minister about the causal factors put forward by the appellant, being that the appellant had a serious long-term drug abuse problem, had not rectified his marital issues and would resume contact with the negatively influencing associates, that could logically connect the evidence to a likelihood of re-offending. It is not for the appellant, or this Court, to posit an alternative line of reasoning and conclude that is the only reasoning consistent with legal reasonableness. In our opinion, the Minister was not required to approach the matter by reference to these causal factors, the Minister having considered that the 2013 offence occurred in circumstances where the appellant had his close family and friends for support and was employed.

35    Each case is fact dependent such that reliance on the different facts of the Court in earlier cases where legal unreasonableness has been found is unlikely to be of assistance. In Muggeridge the difficulty with the Minister’s reasons, and why his decision was found to be legally unreasonable, was that his conclusion of there being a likelihood that Mr Muggeridge would resume contact with an outlaw motorcycle club and so offend “in a similar fashion” could not be reconciled with the Minister’s express findings concerning Mr Muggeridge’s demonstrated rehabilitation, his serious physical debilitation and the absence of evidence that he had had any connections with like motorcycle clubs for more than two decades: see at [55]-[56] per Charlesworth J, with whom Flick and Perry JJ agreed. The way in which the Minister reasoned in the present case shows no lapse in logic of that kind.

36    The appellant also relied on Ogbonna. In that case, which concerned s 501CA(4) and whether the Minister was satisfied that there was “another reason” to revoke the cancellation, it was held at [48] that the legal error was as follows: having made findings in favour of a low risk of re-offending and in the absence of material which could transform that possibility into a probability of re-offending, it was legally unreasonable to conclude that there was a likelihood of re-offending on the sole basis that the applicant’s accepted state of drug rehabilitation had not been tested for more than a short period outside a custodial setting. It was held that the Minister’s state of satisfaction or opinion for the purposes of s 501CA(4)(b)(ii) was not formed reasonably. The facts of that case relevantly included that the Minister had found the applicant’s offending was committed to assist him in obtaining drugs for his own use, had considered the sentencing judge’s remarks which included that the applicant’s motivation was related solely to his addiction, and it was in that context that the Minister’s reasons concerning the applicant’s rehabilitation fell to be considered. Those facts are far removed from the facts of the present appeal. We do not consider that Ogbonna assists the appellant.

37    We do not accept the appellant’s submission that the Minister was required, but failed, to give separate consideration to the appellant’s claim, in his submission to the Department dated 1 February 2016, of shame and remorse for how his wife and child had suffered due to his conduct, as well as his fear of being separated from them if he were returned to Vietnam. In our opinion, the Minister was not required to refer to these matters in express terms. At [50], the Minister took into account the appellant’s remorse and his actions in a non-custodial environment. At [51], the Minister also took into account the appellant’s rehabilitative efforts and ability to refrain from drug use, noting that this had not been tested in the community for a substantial period. At [56]ff, the Minister also considered the effect the appellant’s visa cancellation will have on his wife and her daughter and the effect on the appellant if he was removed from Australia to Vietnam. It was not necessary, as a matter of law, for the Minister to go further and consider the appellant’s shame and fears at the level of granularity for which the appellant contends. Nor do we consider that any error of law is made out by the Minister considering those matters under the heading of Discretion. It follows that we do not need to determine the appellant’s submission, by reference to what was said by the Full Court in MZYTS at [52], that a failure to consider those matters can be inferred from a failure to refer to them in the Minister’s reasons. However, we would note by way of contrast that the omitted matter in MZYTS, in the context of a decision of the Administrative Appeals Tribunal refusing to grant the applicant a visa, was described by the Full Court in that paragraph as “an essential integer of the visa applicant’s claim” which, if it had been considered, would be expected to be referred to.

38    We would grant leave, to the extent necessary, to rely on proposed ground 1 because that ground is closely related to, and does little more than articulate by reference to new legal arguments, the ground as argued before the primary judge. However, the reasons we have given, that ground fails.

Consideration of proposed ground 2

39    As to proposed ground 2, in our opinion the appellant should be granted leave to rely on Ibrahim v Minister for Home Affairs [2019] FCAFC 89. Judgment in that case was given on 30 May 2019, after the hearing and judgment at first instance in the present matter. The paragraphs in the Minister’s statement of reasons in that case, set out by the Full Court at [29], are, subject to one matter, substantially the same as the paragraphs in the Minister’s reasons at [5]-[10] in the present appeal. Thus while we acknowledge the principles in Coulton v Holcombe [1986] HCA 33; 162 CLR 1, in the present case, in our opinion, it is in the interests of justice to allow this amendment.

40    As to the merits of this ground, we have referred in [37] above to one point of difference in the facts: in Ibrahim, at [47] one of the four points made by the Full Court was that in that case the Assistant Minister recognised that the appellant’s circumstances were likely to have changed since his original submission, the intervening timeframe in that case being some two and a half years. In the present case the Minister found, at [10], that the appellant’s circumstances “may have since changed”, some five months having elapsed where no further information was available from him.

41    In our opinion, subject to the question of materiality, we see no difference of substance between the legal principles and the facts in Ibrahim and the legal principles and the facts in the present appeal.

42    At the level of legal principle, we agree that s 501BA(3) removes any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so. The respondent Minister in this appeal did not argue for any different construction but submitted that Ibrahim was distinguishable.

43    At the level of fact, and again subject to the question of materiality, we would also infer and conclude that the Minister’s reasons indicated his understanding that proceeding under s 501BA(2) and doing so without providing natural justice is a composite matter. There is no express recognition by the Minister that he could proceed under s 501BA(2) and provide natural justice to the appellant. The Minister’s reasons suggest that he considered that the decision that he had to make was between proceeding under s 501BA(2) without providing natural justice, on the one hand, or not proceeding under s 501BA(2) at all, on the other. We also see this as following from the words “and therefore he has not been given any opportunity to make representations” in [6] of the Minister’s decision.

44    As in Ibrahim, there is nothing in the Minister’s reasons which would suggest that he regarded the matter as so straightforward that there was no point in giving the appellant the opportunity to be heard, or that he considered that there were circumstances of urgency or other like matters making it appropriate for him to make the decision expeditiously. As in Ibrahim, the Minister’s reference to having weighed the disadvantages to the appellant against proceeding under s 501BA(2) was unnecessary if the Minister had understood that he could ameliorate those disadvantages by providing procedural fairness even while proceeding under s 501BA(2).

45    Turning then to the issue of materiality, in our opinion the relevant analysis is as follows. The Minister erred in assuming, having decided to use s 501BA(2), that he could not provide natural justice to the appellant. As we have said, the Minister’s recognition, at [10] of his reasons, that “some five months have elapsed where no further information is available from him” and the Minister’s acknowledgement that the appellant’s circumstances may have since changed, suggests, as in Ibrahim, an understanding by the Minister that it would be fair to give the appellant an opportunity to make further submissions but that s 501BA(2) did not permit him to do so. The Minister also noted, at [31], that his information as to the appellant’s rehabilitative efforts may now be dated. It follows that the Minister’s misunderstanding meant that he did not consider giving the appellant the opportunity to supply that further information or make submissions as to why the power to set aside the original decision and cancel the appellant’s visa should not be exercised.

46    In those circumstances we do not regard it as incumbent on the appellant to prove what he would have done if the Minister had considered whether or not to request from him, or give him the opportunity to provide, the further information as to his circumstances over the preceding five months, or further submissions. In our opinion the error operates at an earlier point than a failure to afford procedural fairness. As the Full Court said in Ibrahim, at [62]-[63], the Minister misunderstood the nature of the power he was exercising and he should have understood that it was open to him to invite submissions from the appellant if he chose.

47    It is correct to observe that the Full Court went on to say, at [63], that the materiality of the misapprehension was indicated by the contents of an affidavit by Ms Ibrahim who had married the appellant on 8 January 2018, before the Minister’s decision dated 26 February 2018, and therefore within the period of some two and half years to which the Minister had referred in that case. In that affidavit Ms Ibrahim set out matters which she and the appellant would have said had they been given the opportunity to do so. It is also correct to observe that there is no such apparently cogent evidence in the present appeal.

48    However, this is not a common denial of procedural fairness case, but a case of the Minister misunderstanding the nature of the power he was exercising. We would not therefore regard the reference by the Full Court in Ibrahim to the affidavit evidence, then leading to the discussion of materiality in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [31], [46], [66]-[72], as apposite. It went further than we consider to be necessary.

49    We prefer the analysis that compliance with the condition, the correct understanding of the nature of the power, could have resulted in the making of a different decision and it could not be shown that the failure by the Minister to understand the nature of the power did not deprive the appellant of the possibility of a successful outcome. Another available analysis is that the error of law was material because it was a fundamental error and that error could have affected the Minister’s decision. More simply, the Minister’s exercise or purported exercise of the power was affected by his misunderstanding of the nature of the power so that he therefore exceeded his authority or power. The materiality is that, having misunderstood the nature of the power, the Minister did not consider whether to get, or allow the appellant to provide, evidence as to his circumstances in the intervening five months, or submissions on that issue. The effect of the Minister’s misunderstanding was, in part, that the appellant did not know that the Minister was considering exercising the power.

50    It is also to be recalled that in Hossain it was held by Kiefel CJ, Gageler and Keane JJ, at [35], that although the Tribunal breached the implied condition that it was to proceed on a correct understanding and application of the applicable law, by misconstruing and misapplying the criterion which related to the timing of the making of the application, that breach could have made no difference to the decision which the Tribunal in fact made. This was because the Tribunal was not satisfied that the public interest criterion was met and could not reasonably have been so satisfied on its findings. In those circumstances, the Tribunal had no option but to affirm the decision of the delegate. The Tribunal’s conclusion in relation to the public interest criterion was independent of the Tribunal’s erroneous finding which underlay that part of its decision that there were no compelling reasons to extend the time limit for his visa application. That is not this case.

51    In our opinion, that analysis does not require evidence in the present case of what the appellant or Minister would have done if the Minister had considered whether or not to an opportunity to the appellant to provide further material or submissions and had decided to do so. Unlike in Hossain, here there is a clear causal link between the error and the Minister’s decision; it cannot be said that the failure to consider whether to afford the appellant an opportunity to be heard on the cancellation decision was logically independent of, or could not have made any difference to, the decision.

52    In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599, at [45], Bell, Gageler and Keane JJ said that materiality is in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. (It was this reasoning with which Nettle and Gordon JJ disagreed in SZMTA at [90] and following, their Honours being of the view that materiality of error was not a criterion of jurisdictional error.)

53    We would conclude that although, as their Honours state at [46], the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof, those factual questions are likely to be more significant in a case concerning a breach of procedural fairness, which SZMTA was. That may be, at least in part, because obligations to afford procedural fairness, where “fairness” is to be regarded not in the abstract but as an “essentially practical” concept, reflect a concern to “avoid practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37].

54    However, it will not always be incumbent on a person who seeks to establish a jurisdictional error to demonstrate by evidence what would have, or may have, occurred had the relevant legal error not been made. First, a court may draw inferences as to whether the identified error could have affected the Minister’s decision. Second, much will turn on the facts of the case, the decision making process and the kind of error alleged. This is true even of breaches of procedural fairness: we do not see the statements in Hossain and in SZMTA as modifying what was said by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55]-[60]. Their Honours said:

The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration.

Such a breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome”.

That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour's conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case”; it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”.

Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.

There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

(Footnotes omitted.)

55    As we have said, the present appeal is not on analysis a procedural fairness case. It is, in our opinion, not a case where it is incumbent on the appellant to prove, by evidence, what may have occurred had the Minister correctly understood the nature of the power he was exercising.

Conclusion

56    The appeal should be allowed, with costs. Because the appellant has succeeded on a ground not argued before the primary judge, we would not disturb the primary judge’s costs order. We would however set aside his Honour’s order that the proceeding be dismissed. In place of that order we would order that the Minister’s decision be set aside.

Associate:

Dated:    9 August 2019