FEDERAL COURT OF AUSTRALIA
Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KATZMANN J:
Background
1 Section 501(3) of the Migration Act 1958 (Cth) gives the Minister the power to cancel a visa if the Minister reasonably suspects that the visa holder does not pass the character test and is satisfied that the cancellation is in the national interest. The circumstances in which a person does not pass the character test are listed in s 501(6). Relevantly, they include that the person has “a substantial criminal record”, as defined in s 501(7). Section 501(5) provides that if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest, the rules of natural justice and the code of procedure set out in Subdiv AB of Div 3 of Pt 2 of the Act do not apply to a decision made under subs 501(3).
2 The appellant, Dori Chamoun, was the holder of a Class BF Transitional (Permanent) visa before it was cancelled by the Minister (then the Minister for Immigration, Citizenship and Multicultural Affairs). The Minister made that decision because he reasonably suspected that Mr Chamoun did not pass the character test and because he was satisfied that cancellation was in the national interest (“the cancellation decision”). Mr Chamoun did not dispute that he did not pass the character test. Rather, he accepted that he had a “substantial criminal record” within the meaning of s 501(7).
3 One of the matters the Minister took into account in assessing the national interest was a report of the NSW Police Service, which the Minister described in his statement of reasons as “the submission of police that Mr Chamoun is a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community”.
4 By an application filed in this Court on 8 July 2019, Mr Chamoun sought, amongst other things, a writ of certiorari to quash the cancellation decision on the ground that it was affected by a number of jurisdictional errors. He also challenged the Minister’s decision that he be transferred from Villawood Detention Centre to a detention facility in Perth.
5 The challenge was unsuccessful on both counts and the primary judge dismissed the application. This is an appeal from that judgment. It is confined to that part of the judgment which relates to the denial of relief with respect to the cancellation decision and turns on a narrow point. It arises out of the receipt into evidence, on the application by counsel for Mr Chamoun, of a sentence of the written submissions filed on behalf of the Minister.
The argument below
6 Before the primary judge, Mr Chamoun relevantly submitted that the Minister had misconstrued s 501(3) as precluding him from affording natural justice. In so doing, Mr Chamoun argued that the Minister had fallen into jurisdictional error. He relied on the judgments of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 and Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598.
7 Ibrahim was concerned with a decision made by the Assistant Minister under s 501BA(2), which entitles the Minister to set aside a decision of a delegate of the Minister or the Administrative Appeals Tribunal to revoke a decision under s 501(3A) to cancel a visa. Section 501BA(3) provides that the rules of natural justice do not apply to certain decisions.
8 In Ibrahim at [51]–[64], in a joint judgment, White, Perry and Charlesworth JJ held that, in forming the state of satisfaction contemplated by s 501BA(2) of the Migration Act, the Assistant Minister was not precluded from according natural justice by inviting the appellant to make submissions or provide further material. As the Assistant Minister proceeded on the basis that he was so precluded, the Court held that he had misunderstood the nature of the power he was exercising and so fell into jurisdictional error.
9 In Burgess, which concerned a decision made under s 501(3), White and Charlesworth JJ at [85] held (Kerr J agreeing at [27]), adopting the reasoning in Ibrahim, that a misunderstanding about the effect of s 501(3) could constitute jurisdictional error. In contrast to Ibrahim, however, the majority held at [88] (Kerr J dissenting on this point) that in fact no such misunderstanding occurred and therefore no such error was made. Their Honours observed at [89] that “the mere absence of a reference in the material to [the existence of] an option to accord natural justice does not of itself support an inference that the Assistant Minister erroneously believed he had no such option”. An application was filed in the High Court for special leave to appeal, but the application was dismissed on the ground that there was no reason to doubt the correctness of the decision: Burgess v Assistant Minister for Home Affairs & Anor [2020] HCASL 9.
10 The Minister, on the other hand, contended that the reasoning in Ibrahim did not apply to a decision made under s 501(3) and formally submitted that both Ibrahim and Burgess had been wrongly decided. Paragraph 12 of the written submissions filed for the Minister in the proceeding before the primary judge stated that, if the submissions about the proper construction of s 501(3) were not accepted (in other words, if the Court concluded that the reasoning in Ibrahim did apply to s 501(3)), then “the Minister accepts that he proceeded on the basis of the alleged misapprehension”. But the Minister argued that any such misapprehension was not material because it was evident from the Minister’s statement of reasons that he would inevitably have proceeded as he did by refusing to accord natural justice to Mr Chamoun.
11 The appellant tendered the statement in para 12 of the submissions and it was received into evidence as an admission pursuant to s 87 of the Evidence Act 1995 (Cth).
The reasons of the primary judge
12 Given the narrow scope of the appeal, it is unnecessary to refer at length to the reasons of the primary judge. It is sufficient to note the following matters.
13 On the question of the construction of s 501(3), the primary judge found against the Minister. His Honour said at [81]:
Contrary to the submissions of the Minister that the reasoning in Ibrahim does not apply to s 501(3), that Burgess is not binding authority on me because it decided the point contrary to the winning party (the Minister), and that I should not follow Burgess because the point that s 501(3) was different to s 501BA(3) was not there argued, I would follow the decision in Burgess in relation to the construction of s 501(3). That is not least because it seems to me that it would be a strange conclusion, as a matter of statutory construction, to hold that the Minister could not, although he might not be obliged to, seek further material from the applicant even where he wished to do so in relation to a particular issue. That was how the case was ultimately put on behalf of the applicant. I do not accept the Minister’s submission, developed orally, that because the Minister has a choice, within s 501, to proceed with or without natural justice, it is contrary to the scheme of s 501 for the Minister to be able to seek further information from an applicant if he so desires. In my opinion, that choice is facilitative, and I would not regard it as limiting the Minister’s powers. Nor do I accept the Minister’s submission that the availability of a revocation mechanism in s 501C, with an attendant entitlement to make representations, is significant, as the (implicitly, exclusive) mechanism Parliament has chosen for giving a person affected by a decision under s 501(3) an opportunity to be heard. That revocation power is enlivened only where “the person satisfies the Minister that the person passes the character test (as defined by section 501)”. To accept this submission would mean that, in a case such as the present where there is no issue that the applicant fails the character test, the Minister could not in any useful way seek further information to inform his determination of what is required by the national interest under s 501(3)(d), or in relation to discretionary factors generally under s 501(3), even where he thought that would assist him.
14 The primary judge then referred to the decision of the majority in Burgess that the error of construction was not established on the evidence and proceeded to consider whether such an error was made in the present case.
15 His Honour began with an analysis of the Minister’s statement of reasons. He concluded that the statement of reasons correctly summarised the effect of s 501(5) but noted that the Minister had made a decision to proceed under s 501(3).
16 Notwithstanding the admission, after analysing the Minister’s statement of reasons his Honour concluded that the Minister did not proceed on the basis that he was precluded from seeking further information from Mr Chamoun. In doing so, his Honour rejected a submission from Mr Chamoun that the fact that the Minister did not seek further submissions from him demonstrated that the Minister had misunderstood that, if he proceeded under s 501(3), he could not make further inquiries if he chose to do so.
The issues raised in the appeal
17 The notice of appeal alleges that the primary judge erred in two respects:
(1) finding that the Minister had considered that it was open to him to obtain more material from the appellant when the Minister had acted under para 501(3)(b) (ground 1); and
(2) finding that the admission by the Minister, though admissible as to his state of mind and material, did not show that the Minister had misunderstood his power under s 501(3) (ground 2).
18 By notice of contention the Minister contended that the judgment should be affirmed on the following two grounds:
(1) that the primary judge erred at [81] in holding, by reference to the decision in Burgess, that the reasoning in Ibrahim concerning the construction of s 501BA applies equally to s 501(3); and
(2) that the primary judge erred at [95] in rejecting, by reference to Nguyen v Minister for Home Affairs [2019] FCAFC 128, the Minister’s submission that any error in his understanding of his power under s 501(3) would be immaterial.
19 The grounds of appeal were not the subject of separate consideration in the parties’ written submissions. They both relate to the conclusion by the primary judge that the Minister did not labour under the erroneous assumption that, if he proceeded under para 501(3)(b), he was precluded from according natural justice to Mr Chamoun. Consequently, the issue arising for consideration on the appeal is whether the primary judge erred in finding that the Minister did not misapprehend the extent of his power under para 501(3)(b).
Did the primary judge err in finding that the Minister did not misapprehend the extent of his power under para 501(3)(b)?
20 In his written submissions, Mr Chamoun made it clear that his allegation was that, having received the admission into evidence, his Honour was bound to find that the Minister had misunderstood his power, despite what he said in his reasons. Indeed, the effect of the written submissions was that Mr Chamoun’s entire case was based on the notion that the admission was determinative of the Minister’s state of mind. The essence of his argument appears in para 16 of his written submissions:
Once it is accepted that there is an admission of fact as to the Minister’s own state of mind as to his power under s 501(3) and that the Minister “proceeded on the basis of the alleged misapprehension”, then the finding made by his Honour at [94] is simply not open.
21 The relevant part of the Minister’s statement of reasons is in the following terms (without alteration):
4. Section 501(3)(b) of the Act enables me to, without natural justice, cancel a visa that has been granted to a person if:
- I reasonably suspect that the person does not pass the character test (as defined by s501(6)); and
- I am satisfied that the cancellation is in the national interest.
5. Under s501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s501(3).
6. Pursuant to s501C(3), following a decision under s501(3) to refuse to grant or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given information relevant to it and, except in a case where the person is not entitled to make representations, invited to make representations about possible revocation of the decision. Under s501C(4), if, and only if, the person makes representations in accordance with the invitation and satisfies me that they pass the character test, I may revoke the cancellation decision.
7. I note that any representations made by Mr CHAMOUN in response to an invitation under s501C at the revocation stage can bear only on the question of whether or not he passes the character test not on the exercise of my residual discretion under s501(3).
8. I further note that because Mr CHAMOUN has been sentenced to two terms of periodic detention, wherein the total of the time he spent in detention in relation to those terms was more than 12 months, he has a substantial criminal record as provided by s501(7)(d) and he objectively fails the character test under s501(6)(a). I am aware, therefore, that it would be futile for him to seek revocation under s501C(4) as he cannot satisfy me that he passes the character test.
9. I note that I could have instead elected to consider Mr CHAMOUN’s visa cancellation under s501(2) of the Act, with natural justice and that, under that provision, the person is provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.
10. However, I decided to proceed to make a decision in Mr CHAMOUN’s case under s501(3) without natural justice.
22 The primary judge’s reasons on this question appear at [92]–[94] where his Honour said:
92 In my opinion, the effect of s 87(1)(a) of the Evidence Act is to make the representation admissible since it is reasonably open to find that when the representation was made counsel had authority to make statements on behalf of the Minister in relation to the matter with respect to which the representation was made. The Court is to admit the representation for the purpose of determining whether a previous representation is also taken to be an admission by a party. I find that evidence of the admission was admissible and I find that the admission was made: see Heydon JD, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [35640]. Nevertheless, contrary to what I understood to be the submissions on behalf of the applicant, this does not mean that the Court should look only at the admission: the Court must also look at the terms of the admission, the circumstances in which it was made and the other material from which the Court would, in the usual case, draw inferences. On judicial review of an administrative decision where the state of mind of the decision-maker is in issue and where reasons are given, generally speaking that other material is the decision, the reasons and the material before the decision-maker.
93 Although, therefore, I find the admission is admissible, it does not mean that I should not consider the terms of the Minister’s reasons. I also take into account that the admission was made in light of the decision in Ibrahim and before the decision in Burgess.
94 I find that the admission was an admission of fact, the fact being the Minister’s state of mind as to his power under s 501(3), but taking all the circumstances into account I am not persuaded that the Minister’s reasons and the Department’s submission to the Minister show that, as a matter of fact, he misunderstood his power so that he could not, although he might not be obliged to, seek further material from the applicant.
23 I agree with Mortimer and Bromwich JJ that the primary judge did not err as alleged. Having regard to their Honours’ detailed analysis, which I gratefully adopt, I can express my reasons briefly.
24 Contrary to the submission made by Mr Chamoun, the admission made by counsel in the written submissions below was relevant to, but not determinative of, the question whether at the time of his decision the Minister believed that he was precluded from affording natural justice to Mr Chamoun if he exercised his power under s 501(3). At the hearing of the appeal, counsel for Mr Chamoun argued that the primary judge was “not obliged in a legal sense” to find that the Minister’s state of mind was to the effect indicated by the admission, but he was obliged to do so “as a practical matter”. Whichever way the submission is put, it must be rejected.
25 The weight to be attached to the admission, like any piece of evidence, was a matter for the primary judge to assess. In doing so, his Honour was entitled, if not obliged, to take into account both the circumstances in which the admission was made and the reasons of the Minister. As to the first, counsel for Mr Chamoun conceded at the hearing that his Honour was entitled to have regard to the circumstances. It was a relevant circumstance that the admission was made before the publication of the judgment in Burgess. In substance or effect, the admission was a concession by counsel, albeit presumably on instructions, as to the effect of the judgment in Ibrahim. The reasons in Burgess drew attention to significant differences between the submissions of the Department and the reasons of the Minister in the two cases, which the Minister’s lawyers evidently failed to appreciate at the time the concession was made. As to the second, Mr Chamoun did not challenge the primary judge’s statement (at [88] of his reasons) that, “subject to the ‘admission point’, [he did] not consider that the Minister proceeded on the basis that he could not seek further information from the [appellant]”. In any event, the Minister’s statement of reasons is relevantly indistinguishable from the Assistant Minister’s statement of reasons in Burgess. The majority in that case observed (also at [88]), that the mere absence of a reference to the option of according natural justice when invoking the power conferred by s 501(3) did not support an inference that the Assistant Minister erroneously believed that he had no such option.
Did the primary judge err in holding that the reasoning in Ibrahim concerning the construction of s 501BA applies equally to s 501(3)?
26 This is the first question raised by the notice of contention. Having regard to the conclusion reached on the appeal, it is unnecessary to answer it. That said, for the reasons given by the primary judge at [81] and the additional reasons given by Mortimer and Bromwich JJ, I am satisfied that the primary judge did not err in this respect either.
Was the primary judge incorrect to reject the Minister’s contention that, if he did misapprehend the extent of his power, the error would have been immaterial?
27 This is the second question raised by the notice of contention and, in the circumstances, it is unnecessary to resolve it, too. Be that as it may, I agree with Mortimer and Bromwich JJ, for the reasons their Honours give, that the primary judge did not err in rejecting the Minister’s contention.
Conclusion
28 The appeal should be dismissed. The appellant should pay the Minister’s costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
Dated: 15 April 2020
REASONS FOR JUDGMENT
MORTIMER AND BROMWICH JJ:
Introduction
29 This is an appeal from orders made by a judge of this Court by which an application for judicial review of a decision of the respondent Minister was dismissed. The issue below that is maintained on appeal concerns the question of whether the Minister misapprehended an aspect of his power of visa cancellation under s 501(3) of the Migration Act 1958 (Cth).
30 The nature of the alleged misapprehension in this case concerns the ability of the Minister to seek further information, including from a visa holder, before making a visa cancellation decision for which there was, by the terms of the statutory power being exercised, no obligation to afford procedural fairness. There has been a series of Full Court decisions on this topic. Three of those decisions in particular are pertinent to this appeal:
(1) Ibrahim v Minister for Home Affairs [2019] FCAFC 89, decided 30 May 2019;
(2) Nguyen v Minister for Home Affairs [2019] FCAFC 128, decided following Ibrahim on 9 August 2019; and
(3) Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152; 371 ALR 598, decided 30 August 2019.
31 In Ibrahim it was stated (at [63]):
In our opinion, the Assistant Minister proceeding on the basis that he could not provide the appellant with an opportunity to be heard because s 501BA(2) precluded him from doing so was to misunderstand the nature of the power being exercised. He should have understood that it was open to him to invite submissions from the appellant if he chose. The matters to which we referred in [15] above indicate the materiality of the Assistant Minister’s misapprehension: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [31], [46], [66]-[72]. That has the consequence that the decision is affected by jurisdictional error. This conclusion makes it unnecessary to consider an additional submission of the appellant directed to Ground 1 based on BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456.
32 Both Ibrahim and Nguyen concerned visa cancellation decisions made under s 501BA(2) of the Migration Act. Section 501BA provides:
501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Action by Minister—natural justice does not apply
(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or
(ii) paragraph 501(6)(e); and
(b) the Minister is satisfied that the cancellation is in the national interest.
(3) The rules of natural justice do not apply to a decision under subsection (2).
Minister’s exercise of power
(4) The power under subsection (2) may only be exercised by the Minister personally.
Decision not reviewable under Part 5 or 7
(5) A decision under subsection (2) is not reviewable under Part 5 or 7.
33 This appeal concerns a decision made under s 501(3), but it is necessary to produce all of the subsections up to subsection (5) because of the impact they have on the reasoning processes to be considered:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3).
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Before the primary judge
34 The hearing before the primary judge took place on 27 August and 10 September 2019. The first day of the hearing took place after Ibrahim and Nguyen had been decided, but before Burgess had been decided. The appellant argued that the Minister had misunderstood the discretion under s 501(3)(b) as preventing him from providing the appellant with an opportunity to comment on his intention to cancel the visa, relying upon the passage from Ibrahim at [63] reproduced above.
35 In written submissions at the first day of the hearing, the Minister denied that there had been any misapprehension, but submitted in the alternative that even if there was such a misapprehension, it was not material. The first sentence of the written submissions in support of this alternative argument was:
If these submissions are not accepted, the Minister accepts that he proceeded on the basis of the alleged misapprehension.
36 Three days after the first hearing, Burgess was decided. In short, the Burgess Full Court unanimously decided that Ibrahim reasoning in relation to s 501BA also applied to s 501(3), but by majority found that the Minister’s reasons did not disclose such a misunderstanding. In particular, a majority of the Burgess Full Court (being two of the three judges in the Ibrahim Full Court) identified a nuance in the reading of the reasons of the Minister (at [85]-[90]):
Returning to the present case, and adopting the reasoning in Ibrahim, we respectfully conclude that the primary Judge erred in rejecting Mr Burgess’s contention that a misunderstanding about the effect of s 501(3) could not constitute jurisdictional error.
However, it does not follow that the appeal should be allowed.
In Ibrahim, proof of the Assistant Minister’s error was assisted because his reasons disclosed an awareness that Mr Ibrahim’s personal circumstances (relevant to the outcome) were likely to have changed since the submissions he made to the delegate some two years and five months earlier, as well as a recognition that an opportunity to Mr Ibrahim to make submissions may be of benefit to him. The reasons suggested that the Assistant Minister may have wished to provide Mr Ibrahim with the opportunity to make submissions. In that context, the reasons of the Assistant Minister, fairly interpreted, suggested that he had understood that he had a binary choice as to whether to proceed under s 501BA(2) without providing natural justice or not to proceed under that provision at all. More particularly, the reasons showed a failure to recognise that there existed an option under s 501BA(2) to invite further submissions notwithstanding that there was no obligation to do so.
However, in this case the asserted error is not established on the evidence. Unlike the reasons given by the Assistant Minister in Ibrahim, the Statement of Reasons together with the departmental submission do not demonstrate error. The departmental submission correctly stated that the Assistant Minister “may decide to” cancel Mr Burgess’s visa under s 501(3)(b) “without natural justice”. The Assistant Minister correctly stated that s 501(3)(b) of the Act enabled him to cancel a visa without natural justice. The Statement of Reasons correctly summarised the effect of s 501(5) of the Act, namely that there was no obligation to accord natural justice in the exercise of the s 501(3) cancellation power. In short, the reasons do not suggest an understanding by the Assistant Minister that he could proceed under s 501(3)(b) only without providing natural justice.
The arguments advanced by Mr Burgess rest not so much on what is said in the Statement of Reasons or the departmental submission but on what is not said. However, the mere absence of a reference in the material to there being an option to accord natural justice does not of itself support an inference that the Assistant Minister erroneously believed he had no such option. Similarly, whilst the materials support an inference that the Assistant Minster was presented with a binary choice between the course of action provided for under s 501(2) and the course of action provided for under s 501(3), it does not follow that the Assistant Minister misunderstood that the latter course obliged him not to give Mr Burgess an opportunity to be heard.
It is also pertinent in our view that the Assistant Minister did understand that he could cancel the appellant’s visa under s 501 after according the appellant procedural fairness. That was by proceeding under s 501(2). He decided not to proceed under that section.
37 At the second hearing before the primary judge on 10 September 2019, the Minister sought to depart from his prior written submission that “the Minister accepts that he proceeded on the basis of the alleged misapprehension”, but did not formally withdraw the concession made. The submission containing the concession was tendered by the appellant as an admission, arguments were made addressing the issue and it was then left for his Honour to resolve in the judgment to follow. The appellant contended that the Minister had made an effectively irreversible and conclusive admission to the necessary misapprehension to ground the asserted jurisdictional error.
38 The primary judge accepted the appellant’s construction of s 501(3), but did not accept that the Minister had in fact misapprehended his power as alleged.
39 The primary judge decided to follow Burgess in applying the reasoning in Ibrahim to s 501(2) (at [81]):
Contrary to the submissions of the Minister that the reasoning in Ibrahim does not apply to s 501(3), that Burgess is not binding authority on me because it decided the point contrary to the winning party (the Minister), and that I should not follow Burgess because the point that s 501(3) was different to s 501BA(3) was not there argued, I would follow the decision in Burgess in relation to the construction of s 501(3). That is not least because it seems to me that it would be a strange conclusion, as a matter of statutory construction, to hold that the Minister could not, although he might not be obliged to, seek further material from the applicant even where he wished to do so in relation to a particular issue. That was how the case was ultimately put on behalf of the applicant. I do not accept the Minister’s submission, developed orally, that because the Minister has a choice, within s 501, to proceed with or without natural justice, it is contrary to the scheme of s 501 for the Minister to be able to seek further information from an applicant if he so desires. In my opinion, that choice is facilitative, and I would not regard it as limiting the Minister’s powers. Nor do I accept the Minister’s submission that the availability of a revocation mechanism in s 501C, with an attendant entitlement to make representations, is significant, as the (implicitly, exclusive) mechanism Parliament has chosen for giving a person affected by a decision under s 501(3) an opportunity to be heard. That revocation power is enlivened only where “the person satisfies the Minister that the person passes the character test (as defined by section 501)”. To accept this submission would mean that, in a case such as the present where there is no issue that the applicant fails the character test, the Minister could not in any useful way seek further information to inform his determination of what is required by the national interest under s 501(3)(d), or in relation to discretionary factors generally under s 501(3), even where he thought that would assist him.
40 The primary judge then reproduced the relevant portion of the Departmental submission to the Minister on the visa cancellation decision to be made, and found that the Minister had not proceeded upon the basis that he could not seek further information from the appellant (at [84]-[89]):
Although I am dealing with findings of fact, and I therefore do not accept the Minister’s submission that I am bound on this aspect of the case by the findings of the majority in Burgess, I note that the submission by the Department here seems to be in the same terms as the submission considered in Burgess, at [88]: see also the extracts of that submission at [31] per Kerr J.
Turning to the reasons for decision given by the Minister, he correctly noted, at [4], that s 501(3) enabled him, without natural justice, to cancel a visa that had been granted to a person. He noted, at [9], that he could instead have elected to consider the applicant’s visa cancellation under s 501(2) with natural justice and that under that provision the person was provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process, the Minister said, the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.
The statement of reasons correctly summarised the effect of s 501(5).
At [10], the Minister said: “However, I decided to proceed to make a decision in Mr CHAMOUN’s case under s 501(3), without natural justice.” At [82], the Minister said: “I conclude that the information before me raises concerns that are of such a serious nature that the use of my discretionary power to cancel Mr CHAMOUN’s Class BF Transitional (Permanent) visa, without prior notice, is in the national interest.”
Subject to the “admission” point, I do not consider that the Minister proceeded on the basis that he could not seek further information from the applicant. I do not accept the applicant’s submissions that because the Minister did not seek further submissions from the applicant in relation to the NSW Police report or the question of whether the applicant was stateless, that shows that the Minister misunderstood that if he proceeded under s 501(3) he could not make further enquiries of the applicant if he chose to do so.
Further, the Department’s submission stated, after stating that the Minister may decide to undertake a consideration of cancellation under s 501(3) and that under this provision he may cancel a visa if the relevant conditions are met, that “[t]he person is not given notice of the cancellation consideration and is therefore not afforded any opportunity to provide the Department with information pertaining to their circumstances or to respond to any adverse information, before a decision is made”. However, I am not persuaded that that sentence states, nor would I infer that it was in fact read and understood by the Minister as stating, a proposition regarding the necessary legal consequences (as opposed to a proposition about general departmental practice) flowing from the Minister proceeding under s 501(3): cf Burgess at [33] ff per Kerr J, who dissented in the result and on this point. The sentence does not state that the Minister is prohibited from seeking further information from the applicant, if the Minister so desires. The reasons of the Minister do not contain the sentence.
41 On the issue of the admission “the Minister accepts that he proceeded on the basis of the alleged misapprehension”, the primary judge then said (at [90]-[94]):
Turning to the “admission” issue, the Minister submitted that the so-called admission was a submission based on what was apprehended to be the consequence of Ibrahim. It was not then perceived that there might be a ground for distinguishing Ibrahim, which was in fact upheld by the majority in Burgess, he submitted. The so-called admission was not a formal admission of fact: it was not a notice of admission, a deemed admission or even an admission in a pleading of a question of fact. It was not a piece of evidence which was suggestive of the Minister’s state of mind, such as an annotation to a set of submissions written to the Minister in the Minister’s hand, a notation which could be relied on as a piece of evidence. It was simply a legal submission, the Minister submitted, which was seen as no longer correct in light of the decision Burgess, handed down after the date of those written submissions.
The applicant submitted that, contrary to the Minister’s submission on this point, there was no legal content to the admission: it was simply a statement as to a fact, being the Minister’s state of mind at the relevant time. The applicant submitted it was an admission made by counsel for the Minister on a matter that the Minister was uniquely in a position to make an admission about. The applicant submitted that the decision in Burgess could not be binding as to whether the Minister in the present case had the state of mind or not.
In my opinion, the effect of s 87(1)(a) of the Evidence Act is to make the representation admissible since it is reasonably open to find that when the representation was made counsel had authority to make statements on behalf of the Minister in relation to the matter with respect to which the representation was made. The Court is to admit the representation for the purpose of determining whether a previous representation is also taken to be an admission by a party. I find that evidence of the admission was admissible and I find that the admission was made: see Heydon JD, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [35640]. Nevertheless, contrary to what I understood to be the submissions on behalf of the applicant, this does not mean that the Court should look only at the admission: the Court must also look at the terms of the admission, the circumstances in which it was made and the other material from which the Court would, in the usual case, draw inferences. On judicial review of an administrative decision where the state of mind of the decision-maker is in issue and where reasons are given, generally speaking that other material is the decision, the reasons and the material before the decision-maker.
Although, therefore, I find the admission is admissible, it does not mean that I should not consider the terms of the Minister’s reasons. I also take into account that the admission was made in light of the decision in Ibrahim and before the decision in Burgess.
I find that the admission was an admission of fact, the fact being the Minister’s state of mind as to his power under s 501(3), but taking all the circumstances into account I am not persuaded that the Minister’s reasons and the Department’s submission to the Minister show that, as a matter of fact, he misunderstood his power so that he could not, although he might not be obliged to, seek further material from the applicant.
42 The appellant contends that the primary judge erred by finding that the admission, while admissible as to Minister’s state of mind and being material, did not conclusively show that the Minister had in fact misunderstood his power under s 501(3)(b). As a result, the appellant contends that his Honour erred in concluding that the Minister had considered that it was open to him to obtain more information from the appellant when making a cancellation decision under s 501(3)(b).
43 The Minister defends the primary judge’s conclusions, characterising them as being a finding that the admission was not decisive to the factual conclusion required to be reached and otherwise being free of error on the issue of any misapprehension. Alternatively, the Minister relies upon a notice of contention to the effect that:
(1) contrary to his Honour’s conclusion at [81], and contrary to Burgess, the Ibrahim construction of s 501BA does not apply to s 501(3);
(2) even if the Ibrahim construction of s 501BA does apply, any such error was not material, contrary to his Honour’s conclusion at [95].
44 For the reasons that follow:
(1) contrary to the appellant’s appeal ground, the primary judge did not err in relation to the admission issue and thus did not err in finding that the Minister did not misapprehend his power under s 501(3)(b) in relation to obtaining more information from the appellant;
(2) contrary to the Minister’s notice of contention, the primary judge did not err:
(a) in finding the Ibrahim construction of s 501BA does apply to s 501(3);
(b) in finding, in the alternative, that any misapprehension of the power under s 501(3) in relation to obtaining more information would be material.
The admissions issue
45 The substance of the appellant’s argument is that once there was an admission of fact as to the Minister’s state of mind as to his power under s 501(3)(b), namely that the Minister “proceeded on the basis of the alleged misapprehension”, then the primary judge’s conclusion to the contrary at [94] was not open. On this argument, the Minister’s reasons could not be used to go behind the admission and seek to determine objectively whether it had been established that his state of mind was shown to have been infected by a vitiating misapprehension of the power being exercised.
46 The Minister counters by submitting that, outside of formal admissions, such as those made under the Court’s rules, an admission is not necessarily determinative of the fact so admitted. Rather, the admission is but an item of evidence to be considered in the process of a court making a factual determination, including as to weight, citing Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 138-139 and 143-144.
47 In Lustre Hosiery, four justices of the High Court (Rich, Dixon, Evatt and McTiernan JJ) observed at pp 138-139:
No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statement of others, or upon inferences from circumstances which he knows, or which have been reported to him. But such an admission may indicate a state of mind varying from a firm belief based upon a thorough investigation of the existence or occurrence of the fact down to a wavering preference for one of two or more possible hypotheses none of which have been tested or determined. It is apparent that the admissibility of the evidence must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, when the burden of proof lies upon that party. It does not follow that, because such evidence is admissible, it is enough to prove the issue.
48 Their Honours further observed (at pp 143-4) that such an admission will be admissible whatever the source of the information or belief, but once admitted into evidence “its probative force must be determined by reference to the circumstances in which it is made”, of which personal knowledge of the fact admitted to is but one factor.
49 Thus, informal admissions, such as by conduct, are open to be contradicted or explained, and the weight to be given to them is a matter for the tribunal of fact to determine.
50 The Minister submits, in accordance with the argument presented to and accepted by the primary judge, that the admission relied upon by the appellant was no more than a concession as to the finding perceived as being necessary following Ibrahim. In those circumstances, the Minister submits that the primary judge was right to give greater weight to the content of the Minister’s reasons than to the admission erroneously made in deciding whether it had been established that the misapprehension had in fact taken place.
51 The proper conclusion to be reached is that the primary judge was correct to admit the submission into evidence as an admission, especially given the low bar for admissibility in s 87(1)(a) of the Evidence Act 1995 (Cth). However, once admitted, his Honour was not just entitled, but obliged, to assess the weight to be given to an admission of that kind, including its nature and the circumstances in which it came to be made. His Honour’s conduct of that weighing exercise was a careful, but otherwise unremarkable exercise in the evaluation of evidence. Self-evidently, his Honour was entitled to have regard to the very passage of the Minister’s reasons said to have been vitiated by the asserted misapprehension of the power he was exercising and to give that greater weight in discerning whether the asserted misapprehension had been established.
52 No error is discernible in either his Honour’s reasoning process, or in the conclusion reached as to whether the alleged misapprehension had been established. The ground of appeal must therefore fail.
Notice of contention
53 In the particular circumstances of this case, it is appropriate to address the Minister’s notice of contention upon the alternative basis of the appeal ground succeeding, so as to address all of the issues that were in dispute in this appeal proceeding. This is especially so as addressing this did not have any material effect on the efficient dispatch of this appeal: see the discussion on this topic in Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 at [6]-[8]. That is the preferable course in this case because of the importance of the issues raised by the Minister’s notice of contention to the class of migration cases into which this decision falls.
Materiality
54 If the appellant is correct on his contentions about an error by the primary judge in his approach to the admission admitted under s 87(1)(a) of the Evidence Act, the next question is whether that error was sufficiently material to the Minister’s exercise of power so that it can be characterised as an error which deprived the Minister of jurisdiction to exercise the power conferred on him by s 501(3).
55 The primary judge found that the error would have been jurisdictional if he had reached a different conclusion on the Minister’s understanding of his power in all the circumstances. The primary judge said at [95]:
Although unnecessary to my conclusion, I do not accept the Minister’s submission that any error would be immaterial: see Nguyen at [45]-[51].
56 Those passages from Nguyen should be set out:
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.
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.
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.
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.
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.
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.
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 [give] 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.
57 By his Notice of Contention, the Minister contends the primary judge’s conclusion at [95] is erroneous.
58 The key passage in Nguyen is where, having emphasised that the error identified was a misunderstanding of the nature of the power the Minister was exercising, the Full Court identified the issue for determination as whether
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.
59 The appellant bears the onus of persuading the Court of this proposition, but as the Full Court in Nguyen explained, he need not necessarily do so by adducing any additional evidence. Consideration of the Minister’s reasons, in the context of the material before him, is capable of being sufficient, one way or the other, to determine whether or not the proposition is made out.
60 Where what is in issue is a misunderstanding by a decision-maker of the very power which she or he is tasked to exercise, it may be that quite specific circumstances would be required before a reviewing court could confidently conclude that an applicant or appellant was not deprived of the possibility of a successful outcome. The circumstances in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 as explained by the High Court, and by the Full Court in Nguyen, may provide such an example: namely, where there is seen to be a “logically independent” reason for the exercise of power which could not in any way have been affected by the misunderstanding. That is not this case.
61 Here, the misunderstanding (if there was one) went to the core of the Minister’s task in the exercise of his discretion: it concerned whether he could seek further information from the appellant or from others. The error occurred in a context where, as the Minister’s reasons disclose (see, for example [38]), he was conscious that the principal information upon which he relied for his conclusion that the appellant’s visa should be cancelled – the NSW Police Report – contained a large amount of information adverse to the appellant and was a document the appellant apparently did not know the Minister was considering and had no opportunity to comment on.
62 In the Department’s briefing note, the Minister was advised as follows:
It is the submission of police that Mr CHAMOUN is a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community …
63 That is what the Minister also noted at [39] of his reasons. The Minister then went through the report in great detail, setting out all the allegations it made about the appellant’s conduct and activities.
64 The Minister then found (at [51]) that the information in the NSW Police Report was “detailed and credible” and stated:
I am satisfied that Mr CHAMOUN has engaged in other serious conduct by his high level association with a criminal syndicate that is involved in the importation and supply of prohibited drugs for large profits.
65 The Minister also recognised his power was discretionary (at [83]) and that a range of other factors were capable of affecting his decision whether or not to cancel the appellant’s visa.
66 If the Minister understood he could seek further information from the appellant, in the context of the importance and weight he attached to the plainly adverse NSW Police Report, then acting reasonably and rationally there was, we are satisfied, a realistic possibility he may have sought further information because the Minister had no information at all about what the appellant’s response to the content of that report might be. We are not required to be satisfied it is more likely than not he would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 364 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.
67 Where the NSW Police Report featured so prominently in his reasoning, and accepting the Minister would be bringing an open mind, capable of persuasion, to the content of that report and the opinions expressed by NSW Police, had he realised he was able to do so, in our opinion the Minister might have sought information from the appellant, and the information provided might have affected the weight the Minister was prepared to give to the report. All the information before the Minister had to be weighed by him, and that is what his reasons disclose he did. There is no reason for the Court to conclude he would not have done that with any further information he received.
68 In his submissions, the Minister pointed out that he could have cancelled the appellant’s visa under s 501(2), which requires natural justice, but instead decided to cancel the appellant’s visa under s 501(3), which does not. It was therefore said to be fanciful to suggest that, having elected to cancel the appellant’s visa without natural justice under s 501(3), he would nonetheless have given the appellant an opportunity to comment on the NSW Police Report.
69 That submission fails for the reason that, as we discuss further below, on the proper construction of s 501(3), that section permitted the Minister to seek information from the appellant without affording full procedural fairness. If the Minister wrongly considered that ss 501(2) and (3) gave him an all-or-nothing choice, the fact he chose to proceed under s 501(3) cannot establish that, had he apprehended that there was a third option – to seek information from the appellant without affording full procedural fairness – he might not have chosen that option. Assuming there was a realistic possibility that the Minister might have chosen to seek further information from the appellant, it is not for this Court to decide what he might have done with that information. Where questions of discretion and weight are involved, it may be difficult for a reviewing court to conclude the outcome could not realistically have been different without straying into performing the task of considering, first, whether the power to seek further information should be exercised, or second, how any information provided should be weighed in the cancellation decision. Those are not matters for a reviewing court and it is important that any assessment of materiality on judicial review not stray into those areas.
70 On judicial review, where there is an identification of legal error and an assessment of whether it was an error which should be characterised as jurisdictional, there is a significant element of reconstruction involved. The reviewing court is asking: what if the repository of the power had (relevantly here) properly understood the nature of his power? That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision-maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error. It cannot be used as proof of immateriality.
Section 501(3): Ibrahim and Burgess
71 The appellant contends that the primary judge was correct, at [73]-[84], and especially at [81], to conclude that there was, in the power in s 501(3), no express or implied prohibition or limitation on the Minister herself or himself seeking further information from a person whose visa she or he was considering cancelling. That was the finding made by the Court in Ibrahim in relation to s 501BA(3), and in Burgess that approach was applied to s 501(3) by all members of the Court.
72 On the application of that approach (that is, whether in all the circumstances the Minister appreciated and understood there was no such limit), the majority in Burgess (White and Charlesworth JJ) differed from the minority (Kerr J). However, all three judges accepted that the legal principle enunciated in Ibrahim concerning s 501BA(3) applied to the power conferred on the Minister by s 501(3): see Burgess at [27], [85]. Two of those judges (White and Charlesworth JJ) were also members of the Court in Ibrahim. Judgment was delivered and orders made in Ibrahim on 30 May 2019, and in Burgess on 30 August 2019, only three months later. It is clear, in our respectful opinion, that the application of the legal principle about the nature of the power in s 501BA(3) to the nature of the power in s 501(3) was an entirely conscious and reasoned choice by the Court in Burgess.
73 The passages in Burgess to which we have referred are authority for the proposition that, as a matter of legal principle, in forming the state of satisfaction contemplated by s 501(3), the Minister is required to understand that she or he is not, by the terms of the Act, precluded from obtaining further submissions from a visa holder whose visa is exposed to the risk of cancellation under that section. If it were necessary to decide the point, we would be inclined to see the reasoning in Burgess about the construction of s 501(3) as necessary to the conclusion of all three judges and thus part of the ratio of the decision, because it was the legal principle which the majority and minority then applied, as a fact-finding exercise, to the reasons of the Minister as they appeared in that case. On the fact-finding exercise, the members of the Court differed, but not on the legal principle which was to be applied to that fact-finding exercise.
74 However, ratio or not (cf Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124; 253 FCR 115 at [111]), Burgess is a recent and considered decision of a Full Court of this Court on the construction of the very provision in issue in this appeal and on the very construction question in issue in this appeal. It represents the law.
75 More importantly, we consider Burgess is correct, and we consider the primary judge’s description of the legal principle in [81] of his Honour’s reasons is, with respect, entirely correct:
Contrary to the submissions of the Minister that the reasoning in Ibrahim does not apply to s 501(3), that Burgess is not binding authority on me because it decided the point contrary to the winning party (the Minister), and that I should not follow Burgess because the point that s 501(3) was different to s 501BA(3) was not there argued, I would follow the decision in Burgess in relation to the construction of s 501(3). That is not least because it seems to me that it would be a strange conclusion, as a matter of statutory construction, to hold that the Minister could not, although he might not be obliged to, seek further material from the applicant even where he wished to do so in relation to a particular issue. That was how the case was ultimately put on behalf of the applicant. I do not accept the Minister’s submission, developed orally, that because the Minister has a choice, within s 501, to proceed with or without natural justice, it is contrary to the scheme of s 501 for the Minister to be able to seek further information from an applicant if he so desires. In my opinion, that choice is facilitative, and I would not regard it as limiting the Minister’s powers. Nor do I accept the Minister’s submission that the availability of a revocation mechanism in s 501C, with an attendant entitlement to make representations, is significant, as the (implicitly, exclusive) mechanism Parliament has chosen for giving a person affected by a decision under s 501(3) an opportunity to be heard. That revocation power is enlivened only where “the person satisfies the Minister that the person passes the character test (as defined by section 501)”. To accept this submission would mean that, in a case such as the present where there is no issue that the applicant fails the character test, the Minister could not in any useful way seek further information to inform his determination of what is required by the national interest under s 501(3)(d), or in relation to discretionary factors generally under s 501(3), even where he thought that would assist him.
76 The Minister identified a number of factors in his submissions on this appeal which he contended were not advanced in Burgess, and which should persuade this Court to reach a contrary conclusion about the construction of s 501(3). They were:
(a) Unlike s 501BA, “s 501 presents the Minister with a choice between proceeding under s 501(2), which permits cancellation of a visa but requires that natural justice be afforded, and s 501(3), which permits visa cancellation without affording natural justice by force of s 501(5)”.
(b) Second, since it would be “illogical” to imply a power of the kind identified in Ibrahim and Burgess into s 501(3A) (the mandatory cancellation provision), the Parliament should not be taken to have intended that the power in s 501(3) be any different.
(c) Third, there is a right to seek revocation under s 501C, and that is how Parliament has chosen to afford natural justice to visa holders affected by an exercise of power under s 501(3).
77 We reject each of these contentions.
78 The principal reason for that rejection lies in the mistaken premise which underlies them. The legal principle articulated in Burgess, and by the primary judge at [81], does not involve the proposition that the power in s 501(3) is conditioned by an obligation to consider whether to afford procedural fairness or – to use the language of the statute – conditioned by an obligation to consider whether to afford natural justice. Whichever term is used, the principles of procedural fairness or natural justice involve an entitlement on the part of the person affected by the exercise of the power (to be given a reasonable opportunity to be heard, to have adverse information relevant to the exercise of the power drawn to her or his attention, to be fairly apprised of the matters which might lead a decision-maker to exercise the power adversely to the person, and so on), and they involve a legal obligation or duty imposed on the decision-maker with corresponding content.
79 That is not what the Court in Burgess described, nor what the primary judge described. Nor is it what the Court in Ibrahim described. The power which those decisions describe, and which all judges have found is not prohibited or excluded from s 501BA(3) or from s 501(3), is a power in the Minister to seek, or request, further information before exercising the power. The information may be sought from the visa holder. It may be sought from a third party or from the Department (for example, country information). It is a facilitative power to assist the Minister in reaching the correct or preferable decision and to assist the Minister to ensure she or he has sufficient probative material to support the findings and conclusions she or he may be inclined to make.
80 This conclusion deals entirely with the matters raised in [76(a)] and [76(c)] above.
81 As to [76(b)], this contention ignores the fact that s 501(3) is a discretionary power and s 501(3A) is not. The construction of a mandatory and a discretionary power may be quite different, and in our opinion it clearly is in these circumstances. Further, an affected visa holder is given a full opportunity to persuade the Minister why a s 501(3A) cancellation should be revoked (see s 501CA(3) and (4)), whereas a person whose visa is cancelled under s 501(3) has no such opportunity. Instead, all such a person has is, in substance, a chance to correct a mistaken conclusion that she or he did not fail the character test – in reality, a highly unusual situation in the context of the exercises of these powers.
82 It follows that the notice of contention would have failed if the appeal had otherwise been successful.
Conclusion
83 The appeal must be dismissed with costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mortimer and Bromwich. |
Associate:
